Criminal Justice and Courts Bill

Lord Ahmad of Wimbledon Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede]

My Lords, I want to pick up on the point that my noble friend Lady Kennedy of The Shaws has made and speak to Amendment 13, on the review of this extension of tagging. My honourable friend Dan Jarvis made the point in the other place about possible unforeseen consequences of this extension. I was talking to a magistrate colleague of mine only last week, and she pointed out to me that the new GPS tags are physically much larger than the existing tags used today. That means that they are possibly easier to remove—but there is another possible consequence, in that they need charging much more often. The existing tags do not need recharging because the battery lasts for the length of the period that the person is tagged. Potentially, that raises a whole series of issues with offenders—people out on bail or offenders in the case that we are now discussing—who are not properly recharging their GPS-driven tags. My understanding is that they would have to do it by an induction loop; it would not be a physical connection. That could raise a lot of unforeseen consequences, which is why I reiterate my support for Amendment 13, so that it can be looked at when the provision comes into force.

[Lord Ahmad of Wimbledon (Con)]

My Lords, the effect of Amendments 9, 10 and 14 would be, as my noble friend Lord Marks said, to remove from the Bill the provisions which would allow for compulsory electronic monitoring conditions to be imposed on offenders on release from custody. This would leave the use of these conditions on a discretionary basis, as they are now under the Criminal Justice and Court Services Act 2000. I understand that there are some concerns about how these powers will be used. Therefore, it may be helpful if I take some time to explain how the provisions would work and why the Government consider them necessary and important in our drive to deliver a more effective sentencing and rehabilitation framework.

I emphasise that legislation has been in place for some years to provide for the use of electronic monitoring as a condition of release, both to monitor compliance with other conditions, such as curfew or exclusion conditions, and to monitor the offender’s whereabouts as a condition in its own right. The limitations of the current technology have meant that, in practice, electronic monitoring has been used so far simply to monitor compliance with a curfew. However, we are reviewing the electronic monitoring contracts, which provides us with the opportunity to take advantage of new, cutting-edge technology that will enable us to track offenders in the community.

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[Baroness Kennedy of The Shaws]

Before the Minister sits down, perhaps I may ask a question. Was there lobbying by security companies to have this change in law introduced so that it would be compulsory for all prisoners on licence to have tags placed on them? Was there lobbying to create this change in law?

[Lord Ahmad of Wimbledon]

The noble Baroness asks a pertinent question. Representations are always made in any part of government, but the Government are, as I hope I have indicated, taking these steps forward in line with the concerns that exist and based on the evidence that I have presented to the Committee today.

[Lord Beecham]

With respect to the Minister, he may not be able to answer the question that my noble friend has asked without advice from the Box or elsewhere; but he has not even purported to answer the question. The question is a legitimate one. Perhaps he would undertake to reply to my noble friend and let her and the Committee know whether those who are likely to benefit from these contracts lobbied for this provision to be mandatory.

[Lord Ahmad of Wimbledon]

Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.

[Lord Marks of Henley-on-Thames]

My Lords, a great deal of what my noble friend has said in response to these amendments is entirely uncontentious. As I hope I have made clear, I have no objection to discretionary electronic monitoring of prisoners on licence, and no objection to improved tracking, technical improvements or effectiveness. I quite understand everything he said in that score.

My concern was with the element of compulsion added by new subsection (3). I regret that I simply did not understand my noble friend’s response on its drafting. He said that there was somehow a discretion in the order-making power under new subsection (3) that would enable the Secretary of State to take into account cases where it would be difficult, inappropriate or not sensible to impose electronic monitoring. It may be that we are talking about a matter of drafting. In that case, I urge my noble friends to look at the drafting.

New Section 62A provides:

“The Secretary of State may by order provide that the power under section 62 to impose an electronic monitoring condition must be exercised”.

The description of the order-making power states:

“An order under this section”—

which is an order that the monitoring condition power “must be exercised”—

“may … require an electronic monitoring condition to be included for so long as the person’s release is required to be, or may be, subject to conditions or for a shorter period”,

and may,

“make provision generally or in relation to a case described in the order”.

It may be that my noble friend is referring to the entitlement to make provision generally as imposing a discretion. If he is saying that, I would suggest that that no longer complies with the description under new subsection (1) of an order imposing “an electronic monitoring condition” which “must be exercised”. Furthermore, even if he were right that that would somehow allow electronic monitoring conditions not to be mandatory, I would respectfully suggest to him that that is a clunky way of providing for particular cases to be dealt with in accordance with the discretion, which is what I suggest ought to be maintained. However, on the basis that my noble friend will consider the drafting, I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, Amendment 11 seeks to impose a requirement on providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act 2000. It does this by introducing a requirement as to the contents of the code of practice that the Secretary of State will issue under new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. The amendment would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.

I assure the Committee that the Government recognise that there are concerns about the position of private providers of public services under the Freedom of Information Act. As noble Lords may know, the issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act, carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed,

“that contracts provide a more practical basis for applying … outsourced services than partial designation of commercial companies under section 5 of the Act”.

The committee also felt that,

“the use of contractual terms to protect the right to access information is currently working relatively well”.

The Government accepted the committee’s recommendation and later this year will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. The new code will promote and encourage the use and enforcement of contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will also encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.

The Government and the Information Commissioner, referred to by the noble Lord, Lord Beecham, will monitor the effectiveness of the new code. If it does not prove successful, the Government have said they will look at going further, including potentially extending FoI formally to contractors—again, a point made by the noble Lord, Lord Beecham. We believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of these steps, I would argue that the measures proposed through these amendments are unnecessary. Based on the explanation and assurance I have given, I hope the noble Lord will be minded to withdraw his amendment.

[Lord Beecham]

My Lords, I will not press the amendment at this stage, but it is not clear to me why there should be two separate systems, one for private contractors and one for public agencies. The opportunity to raise an FoI request is open to anybody and should apply equally to the two different types of provider.

The Minister and his ministerial colleague in the House of Commons referred to the production of a code of practice. Once again, we are being asked to legislate in a vacuum because we have not seen the code of practice. Nor is it clear whether that code of practice will be subject to parliamentary approval. Perhaps the Minister can indicate whether that would be the case.

However, even if it were subject to parliamentary approval, I still do not see the logic in having two separate systems for the provision of like services, depending on which provider is carrying them out. Surely that will not assist members of the public. It must be difficult for them, as it is for me, to comprehend why there should be two parallel systems when they are looking not so much at the provider as at the nature of the service and any potential problems that might arise.

If the noble Lord cannot deal with that today, perhaps he will consider writing to me—again, sending that reply to the Library—otherwise, this is a matter to which we may well have to return on Report. In the circumstances, I beg leave to withdraw the amendment.

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[Lord Ramsbotham]

My Lords, I support what the noble Lord, Lord Beecham, has said. What concerns me most about Clauses 7 and 8 is that there appears to be no relevant impact assessment of what this means, not just in terms of the numbers of people who will be recalled but in terms of the numbers of people who are sentenced to short-term imprisonment followed by 12 months’ supervision in the community. The overall impact assessment tells us that there will be no impact from the provisions following the Offender Rehabilitation Act, but the impact assessment on Clause 7 says that there is a risk that short-term prisoners in their 12 months’ supervision might impose an impact. That means, as we know, that those prisoners are particularly likely to breach. It is assessed that there could be up to 13,000 short-term prisoners breaching, which will impose a considerable strain on the Prison Service. I ask the Minister whether this impact assessment has been worked out. It seems to me to be quite improper for us to pass an amendment without knowing what the impact will be.

[Lord Ahmad of Wimbledon]

My Lords, as the noble Lord, Lord Beecham, explained, the amendment seeks to require the Secretary of State to review the offender’s licence conditions before deciding whether a recalled determinate sentence prisoner should be subject to discretionary re-release, rather than automatic re-release, on the grounds that the offender is highly likely to breach a condition of their licence if so released. I presume that the aim is to ensure that recalled offenders have not been set up to fail through the imposition of inappropriate licence conditions and then suffer the consequences.

The purpose of this clause is to target those offenders who, while not presenting as a high risk of harm, have persistently failed to comply with probation supervision and any reasonable conditions that have been placed on their licence. More often than not, they are offenders who lead chaotic lives and persistently reoffend. They are offenders who are assessed as highly likely to breach their licence conditions on their re-release after 28 days in custody, thereby resulting in almost immediate further recall.

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[Lord Beecham]

Clause 10 creates a new offence of remaining unlawfully at large after recall. When he replies, will the Minister indicate the likely incidence of this offence or at least the basis on which the Government have seen fit to create an offence? How many offenders have broken their conditions and have remained unlawfully at large? That would be a material consideration.

The amendment does not necessarily challenge the creation of the offence, but it seeks to incorporate within the definition of the offence in Clause 10(1) and thereby insert into the Crime (Sentences) Act 1997 a factor which would render a person guilty of an offence if he, while unlawfully at large fails, deliberately and without reasonable excuse, to take all necessary steps to return to prison as soon as possible. The point of the amendment is to address the significant number of offenders, to whom I have already referred in another context, who have mental health or learning disabilities which may well impair their capacity to understand and comply with requirements in relation to recall.

It is important to bear in mind the significant numbers that I have already mentioned. I shall give a little more detail of the percentages involved: 20% to 30% of offenders have learning disabilities or disabilities that interfere with their ability to cope with the criminal justice system; 23% of young offenders have learning difficulties—that is to say, IQs of below 70—and a further 36% have borderline learning difficulties. That is a clear majority of young offenders. More than half of prison staff believe that prisoners with learning disabilities or difficulties are more likely to be victimised or bullied than other prisoners. They are also more likely to have broken a prison rule by several times the number of other prisoners. This is a group of damaged people, largely as a result of learning disabilities.

We know in any event that a very high proportion of prisoners suffer from one or more learning disabilities. Some 70% of adults suffer from one or more of such disabilities, while 80% of young offenders suffer from them. With that will often go problems in communication and comprehension skills, and perhaps even memory problems. Given that, we are dealing with a group of people of whom at least quite a significant proportion will struggle anyway out in the community, whether they are on licence or have ultimately served their sentence. To create a criminal offence that does not take into account those limitations is, in my submission, to veer towards injustice. What is needed is for those factors to be taken into account before bringing these people within the ambit of an offence. This amendment seeks to do that because deliberation assumes the capacity to take a decision which most noble Lords and perhaps most of the population would be able to take without the encumbrance of conditions which might limit that capacity.

The thrust of the amendment is to provide a safeguard. I hope that the Minister will look at it sympathetically. His colleague in another place, Jeremy Wright, seemed to think that the word “deliberately” did not add anything to the question of a “reasonable excuse”, but I suggest that potentially it does. It strengthens the position of those who would find it difficult to cope with the requirements, but it would not exclude those who are capable of deciding on what is required of them and who then make a deliberate decision not to comply. I hope that, either today or by the time we reach the Report stage, the Minister will be able to indicate the number of people who are remaining at large unlawfully at any one time. That would be useful background information to inform the debate at a later stage. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, I understand totally the sentiment behind the amendment, but the offence is about making sure that, in the most serious cases where offenders have been recalled from licence and have run off to avoid serving their sentence, the courts have the necessary powers to deal with them. I assure the Committee that this is not about locking up as many people as possible or indeed prosecuting them unnecessarily. The offence will not apply to the vast majority of recalled offenders, who are returned to custody within a few days, some of whom are unaware that their licence has been revoked until they are arrested. I understand the aim of making sure that the new offence does not penalise offenders who may remain unlawfully at large through no fault of their own. Clause 10 is carefully framed so that an offender who is recalled to prison will be guilty of committing the offence only if they have been notified of the recall, either orally or in writing, or they can be treated as having been notified of the recall in light of repeated failures to keep in touch with probation as required. If they fail without reasonable excuse to take all necessary steps, they can be returned to custody.

The noble Lord, Lord Beecham, has rightly raised the issue of safeguards. Not all licence breaches lead to recall and there are a number of stages that must be passed before the offence will bite. These provide important safeguards which ensure that the vulnerable offenders whom he mentioned quite specifically are not set up to fail. He will know, as will most noble Lords, that in all circumstances the probation officer and the National Offender Management Service must consider whether the offender’s licence should be revoked and, if so, whether they should refer the offender to the Secretary of State to make the final decision. That judgment is and will rightly remain a matter for the discretion of the professionals who know the offender and the particular circumstances.

The noble Lord also asked how many offenders are currently unlawfully at large. The provision is about those who remain unlawfully at large following a recall to custody from licence. Information on licence recalls and returns to custody is published quarterly and the most recent publication was on 24 April this year. The total number of offenders recalled to prison for the period 1984 to December 2013 who had not been apprehended by 31 March 2014 was 1,050, which represents around 0.6% of the offenders who were recalled during that period. I hope that this information is helpful and I would reiterate that I understand the intent behind the amendment. I hope that the safeguards which the Government have sought to put in place in framing this clause reassure the noble Lord and I trust that he will be minded to withdraw the amendment.

[Lord Beecham]

I am grateful to the Minister for his response and I note the very small percentage of those who fail to respond. Of course, the noble Lord is not in a position to say who among them would fall into the category I have described, and it may be that that is a matter which is worth looking into. However, I presume that it would be for the Parole Board or some other body. In the circumstances, and certainly at this stage, I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Patel, for tabling these amendments. I must admit I was somewhat surprised that he was confused that the name of the noble Lord, Lord Beecham, was added to the amendments rather than his. Perhaps it would have been more palatable had he said he had been confused by my good self but, accents aside, there may be more similarities there. The noble Lord raised some very pertinent issues, as did my noble friend Lord Mancroft, in talking about drug issues more generally in society. I have often spoken about this issue at the Dispatch Box in responding to Questions. We also heard briefly about legal highs.

Amendments 19 and 20 both relate to the use of drugs in prisons, although from two different perspectives. I know that the noble Lord, Lord Patel, has laid Amendment 19 in good faith to support the well-being and security of prisoners. However, in all prisons where prisoners are being supplied medicines for the management of either long-term conditions or for the treatment of acute clinical conditions, the safe use of medicines is taken extremely seriously. The noble Lord, Lord Beecham, rightly talked about the role of the NHS. Clinical governance of this process in England and Wales is undertaken by qualified pharmacists commissioned by the National Health Service not the National Offender Management Service or Her Majesty’s Prison Service. I assure all noble Lords that dispensing complies to national guidelines and is risk assessed by pharmacists on a case-by-case basis to ensure that medicines are dispensed in a manner that is safe and appropriate to a custodial environment, including the risks of the diversion of medicines and decisions over whether appropriate medicines can be “held in possession”. These processes are subject to routine audit and assurance in line with guidelines for the management of medicines in the wider community.

Moreover, prison staff are very much aware of prisoners attempting to take medication without swallowing in order to sell or pass on that medication to other prisoners. This is sometimes done in reaction to bullying from other prisoners. Every effort is made to prevent this. The noble Lord, Lord Patel, gave several examples of good practice. I give him the assurance that I will share that with my honourable friend the Prisons Minister and perhaps we can arrange a meeting to explore how this issue can best be addressed across the board. The Government have always held the opinion that where good practice can be shared across the prison estate it should be taken on board. I hope that, given that reassurance, the noble Lord will be minded to withdraw Amendment 19.

Amendment 20 would require the Secretary of State to report to Parliament on the incidence of drugs in prison and the effectiveness of drug taking. I assure noble Lords that the Government take the issue of drugs in prison extremely seriously. Therefore, Clause 14 represents an immediate step to address the challenges facing the Prison Service with the different types of drugs that are being abused by prisoners. I totally take on board the fact that legislation alone, either drafting it or applying it, will not deal with the issue, as the noble Lord, Lord Patel, said, but it is the way forward.

In regard to the incidence of drugs in prisons and the effectiveness of drug testing of prisoners, it is assumed that the question refers to the number of positives for drug abuse found by the mandatory drug testing programme across the prison estate. The effectiveness of the MDT programme is kept under constant internal review, including the range of drugs tested, which will be extended as appropriate. The number of prisoners being tested under the MDT programme and the percentage found to be positive are already published in the NOMS management information addendum. All this information is available on the government website.

As noble Lords are aware, the Ministry of Justice is ultimately accountable to Parliament for the discharge of its responsibilities, including those on the prison estate. Bearing in mind that the information is publicly available, and that noble Lords and honourable Members in the other place can hold the Government and the Ministry of Justice to account, we do not believe that the addition of further reporting requirements is necessary. Given the assurances and the explanations I have provided and the offer of a discussion on how we can introduce best practice, I hope that the noble Lord will be minded to withdraw the amendment.

[Lord Patel of Bradford]

I thank the noble Lord for his response. I agree that he and I are slightly more similar than I am to my noble friend Lord Beecham as we both have hair.

Criminal Justice and Courts Bill

Lord Ahmad of Wimbledon Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede]

I take the point the noble Lord has made. I was really seeing this in the wider context of not just cautions but of out-of-court settlements as a whole. As we know, in London, for example, there are many tens of thousands of out-of-court settlements. Many of them are not cautions but other forms of out-of-court disposals which should be addressed by the scrutiny panels as and when they are running. Nevertheless, the point the noble Lord, Lord Marks, made is a fair one, and I acknowledge it.

[Lord Ahmad of Wimbledon (Con)]

My Lords, although some of the contributions were about the group that follows and the stand part on Clause 15, I will speak to the amendments in this group. If noble Lords have any additional comments when we get to the next group, I shall cover the specific issues relating to Clause 15 at that time.

The amendments tabled by my noble friend Lord Marks, while well intentioned, would have a detrimental effect on how simple cautions are administered. It is only right and proper that cautions are given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour. The propositions set out in Clause 15 follow the review of simple cautions conducted by the Government last year and were developed in conjunction with the police and the CPS.

Perhaps I may refer briefly to Clause 15. It already creates the appropriate levels of authorisation based on the seriousness of the offence when deciding whether to give a simple caution. Amendment 21 would affect the provisions on indictable-only offences. The clause provides that a simple caution can be given only for such an offence where a police officer determines that there are exceptional circumstances and the Director of Public Prosecutions consents. The noble Lord, Lord Kennedy, asked for examples of exceptional circumstances and when it would be appropriate for the police to administer a repeat caution. I do not want to be drawn at this juncture into trying to determine what “exceptional circumstances” should or could mean. They are operational matters that would be unique to each case. However, there is specific guidance to this which is used by the police, and those factors are taken into account when determining where there are exceptional circumstances. Specific examples include the age of the offender, culpability, remorse and the mental health of the offender.

The rank of the police officer will be specified by order made by the Secretary of State. However, we anticipate that the order will specify the rank of at least superintendent. This mirrors the position in the current guidance on adult simple cautions. The amendment would remove the senior police officer from the decision-making process. In practice, the role of the DPP will be undertaken by the Crown Prosecution Service. The regional office of the CPS should be best able to determine for operational reasons who should make a decision about whether a simple caution for an indictable-only offence should be given, and it is not right that we should restrict this to the regional chief crown prosecutor. In practice, the chief crown prosecutor may well determine that the decision is his or hers to make, but we should not be so prescriptive as to set this out in legislation.

Amendments 22 and 23 would require the regional chief crown prosecutor to decide whether to give a caution for a specified either-way offence, and separately non-specified either-way and summary-only offences where the offender has been convicted or cautioned for a similar offence within the last two years. The clause as drafted makes it clear that these decisions must already be taken by a police officer of a rank specified by the order made by the Secretary of State. It is envisaged that the Secretary of State will determine that the decision to give a simple caution for a specified either-way offence will be made only by an officer of at least the rank of inspector. For non-specified either-way offences and summary-only offences, it is envisaged that an officer of at least the rank of sergeant will determine whether a simple caution should be given. Escalating all these decisions to the regional chief crown prosecutor would hugely slow down the decision-making process to administer a simple caution and would increase the burden of bureaucracy on both the police and the CPS. In difficult cases the police can always consult the CPS. It is also worth noting that the public interest test in Amendments 21 to 23 is already exercised by the police and, where relevant, the CPS under the existing guidance on simple cautions when determining whether to give a simple caution. It is also anticipated that revised guidance will require the public interest test to continue to be exercised in the same way, and therefore there is no need to replicate this in statute. It is a level of detail that is best set out in guidance.

Amendment 24 seeks to ensure that a senior police officer would determine whether there are exceptional circumstances such that a simple caution can be given where it otherwise would not be, and whether an offence is similar to a previous offence. It is only right and proper that simple cautions should be given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour.

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[Lord Kennedy of Southwark]

My Lords, as I said on the previous group of amendments, we support this clause and the intention to oppose its standing part of the Bill is just a device to enable a debate to take place.

These amendments in the name of the noble Lord, Lord Marks, would remove the power of a police officer to determine whether there are exceptional circumstances under which an individual can be cautioned, and would also remove the power of the Secretary of State to change the period of time from the current two years which can be taken into account and counted as a previous conviction. It is important to provide a police officer with the ability to make this determination. I was pleased to hear the comment about a senior police officer being involved. The proposal to remove a power of the Secretary of State in this regard is not one that we are persuaded to support. However, I hope that the noble Lord, Lord Ahmad, will explain the intention behind these powers and the government process for determining whether they should be used. What parliamentary process will be used? It is important that there is adequate opportunity for robust challenge and scrutiny of what the Government are doing. I have no other remarks to add on cautions other than to say that there is concern about their use for indictable offences. We support the intention behind the clause.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend for tabling the amendment. I also thank the noble Lord, Lord Kennedy, for his general support in principle for the intention behind Clause 15.

Clause 15 places restrictions on the use of simple cautions by a constable. Simple cautions provide a means for a constable to deal with a person aged 18 or over who has admitted to committing an offence in England and Wales. A caution is primarily designed for dealing with low-level, mainly first-time, offending. While the use of cautions has been falling, it is clear that there are problems with how they are being used in certain circumstances.

The Government are clear that serious offences should always be brought to court. The Ministry of Justice publishes non-statutory guidance on how a simple caution should be used and the circumstances when a caution would not be considered appropriate. These provisions stem from the simple cautions review, which was itself prompted by public concern about the apparent misuse of simple cautions by the police for seemingly serious offending behaviour. The review set out to examine the way in which simple cautions were being used and consider the need for any changes to ensure that there continues to be public confidence in the use of simple cautions.

The outcomes of the review were published in November last year and concluded that simple cautions should not be used for indictable-only offences and certain serious either-way offences. These include possession of a knife, offensive weapon or firearm in a public place, offences involving child sex abuse or child pornography, and supplying Class A drugs. The MoJ guidance on the use of simple cautions was updated as a result and provides that a simple caution should be given for these offences only where a senior police officer believes that there are exceptional circumstances. I heard what the noble Lord, Lord Kennedy, said about further discussions on this. I am sure that we will have further detailed discussions on definitions.

The guidance also makes it clear that for all other offences a simple caution should not be given where a person has been convicted or cautioned for a similar offence in the past two years. The Government have now decided to put these restrictions on the use of simple cautions on a statutory footing. This clause therefore provides that a simple caution may not be given for indictable-only offences, unless there are exceptional circumstances to be determined by a senior police officer, and the Crown Prosecution Service also needs to consent.

This clause also provides that a simple caution may not be given for certain serious either-way offences unless there are exceptional circumstances to be determined by a senior police officer. The list of serious either-way offences subject to this restriction will be set out in secondary legislation. Furthermore, for the remainder of either-way offences and all summary-only offences, the clause provides that a simple caution may not be given where the offender has been convicted or cautioned for a similar offence within the previous two years, unless there are exceptional circumstances. The clause provides for the minimum rank of a senior police officer who determines whether there are exceptional circumstances and whether the previous offence was similar to be specified in secondary legislation. The two-year period between current and previous offending behaviour may also be amended by secondary legislation.

Our priority is to stop the cycle of reoffending and ensure that serious offences are dealt with by the most appropriate method. Criminals should not get caution after caution for committing the same offence time and time again, often for serious offences. The public needs confidence that cautions are being used appropriately. This clause helps ensure that this happens and will provide clarity for front-line practitioners. In developing these proposals we have worked carefully with the police and prosecuting agencies to ensure that simple cautions are used effectively and appropriately. The clause should therefore stand part of the Bill. I give this explanation in order to highlight some of the detailed reasons for the Government’s thinking behind Clause 15.

Amendments 25, 26 and 27 would remove the Secretary of State’s power to specify, by way of order, the minimum rank of police officer who will take certain decisions. The amendments also remove the Secretary of State’s power to change the two-year period when considering previous offending history in relation to non-specified either-way offences and summary-only offences. By tabling Amendment 25, my noble friends Lord Marks, Lord Dholakia and Lady Hamwee would remove the power to specify by order the minimum rank of police officer who may determine exceptional circumstances—for example, when giving a simple caution for an indictable-only offence or a specified either-way offence, and when giving a simple caution for a non-specified either-way offence or summary-only offence where the offender has been convicted or cautioned for a similar offence in the past two years. This means that there would be no restriction as to the rank of officer that would be able to make these decisions under Clause 15(2)(a), 15(3) and 15(4). This would mean, in effect, that the most difficult decisions as to whether to administer a caution for the most serious offences, and for repeated offences, could be taken by the most junior constable. This plainly cannot be right.

The simple cautions review made specific recommendations on the rank of officer that ought to take certain decisions. These recommendations were taken forward in the revised guidance on simple cautions, published by the MoJ on 14 November last year. It is anticipated that the order-making power, exercisable by the Secretary of State in relation to determining the rank of officer who can make such decisions, will replicate the provisions of the guidance. Namely, a superintendent or rank above will need to make the decision that exceptional circumstances exist so as to give a simple caution for an indictable-only offence. In addition, an inspector or rank above will need to decide that there are exceptional circumstances that justify giving a simple caution for a specified either-way offence or for a non-specified either-way offence or summary offence where the person has been convicted or cautioned for a similar offence in the past two years. It is important that we are clear on who can make these decisions and that there are restrictions on it.

Amendments 26 and 27 would remove the ability of the Secretary of State to amend the two-year period within which repeat cautions should not normally be given in relation to non-specified either-way and summary-only offences. This is a necessary provision. We are basing the two-year period on the same period set out in the guidance published by the MoJ that currently determines how simple cautions for such offences should be given. There may in the future be reasons to extend or, indeed, shorten the time period. The Government may wish to determine that repeat simple cautions should not ordinarily be given unless there are exceptional circumstances within a five-year period or, conversely, within a one-year period. This is the first time that we are placing statutory restrictions around the use of simple cautions, and there needs to be flexibility in order to ensure that the restrictions work properly. It is also worth noting that any such order made by the Secretary of State amending the time period must be made by the affirmative resolution procedure, and so Parliament will have a say in any change proposed.

I know that I have given a rather detailed explanation of the Government’s position but, in doing so, I hope that I have given enough reassurance and detail that my noble friend will be minded to withdraw his amendment.

Prisons: Overcrowding

Lord Ahmad of Wimbledon Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Deben (Con)]

Why is it—

[Lord Ahmad of Wimbledon (Con)]

My Lords, this is an Urgent Question and the time allocation of 10 minutes is up.

Assisted Suicide

Lord Ahmad of Wimbledon Excerpts

Wednesday 5th March 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I, too, thank the noble Baroness, Lady Jay, for her consideration of the DPP guidelines.

The DPP guidelines were produced only after extensive consultation. I was privileged to be involved in responding to that consultation on behalf of Not Dead Yet UK, the coalition of hundreds of terminally ill and disabled people who formed a group to oppose a change in the current law on assisted suicide.

In the consultation, the DPP asked what weight should be given to any progressive condition or disability experienced by the victim. We argued strongly that that was potentially discriminatory and fed into society’s prejudices that terminally ill and disabled people do not require equal protection of the law. I am happy to say that that was adhered to. As someone who from time to time must rely on medical interventions from doctors, I was thoroughly relieved to see that assistance with suicide by a doctor or nurse to a patient under their care is listed in the guidelines as an aggravating factor.

Terminally ill and disabled people are in a worse position today than was the case five years ago. National economic instability means that public support services are under more pressure than ever. That has hardened public attitudes towards progressive illnesses, old age and disability. Words such as “burden”, “scrounger” and “demographic time bomb” come to mind, and hate crime figures in relation to vulnerable people have increased dramatically. This is a dangerous time to consider facilitating assistance with suicide for those who most need our help and support. It is not only dangerous for those who may see suicide as their only option, but can be tempting for those who would benefit from their absence.

I am disappointed that there are Members who refuse to accept previous decisions made by this House and relentlessly bring the issue of assisted suicide back for debate again and again. One does not have to look very far to see where the slippery slope of legalising assisted suicide takes a country. Belgium has recently extended its law on euthanasia to include terminally ill and disabled children. That is not a future I want for our children or the most vulnerable, and this House has made it clear that it shares that view.

The DPP’s guidelines are to be celebrated as an essential tool in providing protection to society’s most vulnerable people. I trust that they will continue to enjoy the support of the Government and this House.

[Lord Ahmad of Wimbledon (Con)]

My Lords, before the right reverend Prelate gets to his feet, I briefly remind noble Lords that there is a two-minute limit on each speech and ask them please to keep to that, because this is a time-limited debate.

Social Welfare Law

Lord Ahmad of Wimbledon Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords—

[Lord Ahmad of Wimbledon (Con)]

The noble Lord, Lord Gold, has given notice.

[Lord Phillips of Sudbury]

So have I.

[Lord Ahmad of Wimbledon]

I have not received that.

[Lord Phillips of Sudbury]

I gave my details in at 12 o’clock today.

[Lord Ahmad of Wimbledon]

If the noble Lord could take his seat. If both noble Lords intervene for just two minutes we should be able to fit both in. I was certainly not informed that the noble Lord, Lord Phillips, intended to speak.

[Lord Phillips of Sudbury]

I gave it in at 10 o’clock.

Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Wednesday 22nd January 2014 Lords Chamber

Moved by

[Lord Ahmad of Wimbledon]

95: Clause 166, page 132, line 24, at end insert “and Schedule 3”

[Lord Ahmad of Wimbledon (Con)]

My Lords, these are minor technical and drafting amendments in respect of the powers to make consequential amendments and make commencement orders. I beg to move.

Amendment 95 agreed.

Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Tuesday 12th November 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I will also speak to Amendment 9. I thought that after the previous debate on the Bill I would be faced with saying, “Follow that”, but lunch overtook us. However, it is in fact a question of “Follow that”.

Amendment 6 would alter the definition of “force” in the new provision. Noble Lords might wonder why I am worrying about that. In fact, I propose that the definition be the same as the definition in Section 63A(6) of the Family Law Act 1996—in other words, the definition for the forced marriage protection order. I had wondered why different definitions were used in the Bill and existing legislation.

I wonder that even more after the previous debate on the Bill. The noble and learned Baroness, Lady Scotland, referred to psychological means of coercion which are not referred to in the Bill but are referred to in the 1996 statute. She talked about emotional blackmail which might be exerted by members of the very observant part of the Jewish community.

My noble friend Lord Ahmad certainly used the term “psychology”. If there are intentional differences between the grounds for the two different offences—as we are calling both of them—then the Committee ought to be clear that that is intended. If it is not intended that there are differences, then, again, the Committee should be clear that that is the case.

The noble and learned Baroness, Lady Scotland, talked about “emotional blackmail”; I would include that with the term “psychological coercion”. There may be quite porous demarcation lines in attitudes and the way in which one deals with one’s children. However, trying to stand back and look at it objectively, given the emotional blackmail which she described, from what we have heard from other noble Lords and what we know from our own experience, psychological means should not simply be left aside without noble Lords addressing their minds to them.

My Amendment 9 is much more straightforward. Its purpose is merely to obtain confirmation that a habitual residence—“habitually” is the term used in the Bill—is as it is understood under the Hague convention and the case law which has developed from that. It is obviously not defined within the Bill. I believe that it is used elsewhere in legislation, although I have not been able to find it myself—although I found myself going down different byways of reading, looking at reports of cases on the internet. However, if my noble friend could confirm that, I would be grateful. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I am grateful to my noble friend Lady Hamwee for explaining her Amendments 6 and 9 to Clause 108. It is important that we get the definitions of the new offences right and I welcome this opportunity to explore them in more detail.

Amendment 6 would amend the definition of a forced marriage. Clause 108 defines it as including the use of,

“violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage”.

My noble friend Lady Hamwee proposes that this should be replaced with alternative wording that, as she explains, would mirror the language used in the Family Law Act 1996 in relation to forced marriage protection orders.

The main difference between the two formulations is that the amendment refers to “psychological means”, while Clause 108 refers to,

“any other form of coercion”.

This is intended to make it very clear that the offence recognises the different types of pressure that can be put on victims. Victims are continually faced with different types of pressure in the course of being forced into marriage, including physical, emotional, financial and sexual pressures. It is therefore right that the definition of the offence should fully cover all of the behaviours that could be employed by the perpetrators of this absolutely horrendous practice. That is what Clause 108 does. On that basis, therefore, I do not believe my noble friend’s Amendment 6 to be necessary.

My noble friend’s Amendment 9, as she has explained, is designed to probe the meaning of the word “habitually” as used in Clause 108(5)(b). The clause provides that an offence is committed outside the United Kingdom if either the victim or perpetrator is a UK national or “habitually resident” in England or Wales. This means that the new law will apply, for example, in a situation where someone who lives in England or Wales is taken abroad in order to be forced into a marriage.

The term “habitual residence” simply means the ordinary residence of a person. As my noble friend alluded to, in fact, the term was introduced into English law from the conventions under the Hague Conference on Private International Law, where it was developed due to the perceived problems with establishing the domicile of some persons, in particular children. The term is commonly used in legislation without further definition and I am satisfied that that is the correct approach to adopt here. Based on those clarifications and explanations, I hope that my noble friend will be minded to withdraw her amendment.

[Baroness Hamwee]

My Lords, I will probe the first one a little further. Of course I agree with my noble friend that we have to cover every situation, or as he said, “every type of pressure”. However, as regards the definition, is there a distinction between the provision in the Bill and the provision in the 1996 Act? If there are differences, can we know them? He has not addressed that point. If they are the same, can we know that?

[Lord Ahmad of Wimbledon]

My Lords, as I said about the language to which my noble friend alluded, Clause 108 has been drafted to ensure that it clearly covers the wider range of factual scenarios that exist in forced marriage cases. That addresses why there is a difference between Clause 108 and Section 63A. Clause 108 is intended to be all-encompassing.

[Baroness Hamwee]

My Lords, that begs the question of whether the 1996 Act is not all encompassing. I do not want to make life more uncomfortable this afternoon—I stress this afternoon—for my noble friend, but would he be able to write to me about that, following today’s Committee proceedings? This looks like a lawyer’s point, but it is a very real one. We have already talked today and will continue to talk about the choice between the two routes. Of course, one of the factors in the choice will be if the definitions are different, and therefore if the criteria for choosing one route are not the same as the criteria for choosing the other. I gave notice to my noble friend—although probably not directly to him—of the points that I wanted to raise on these two amendments. I will not tease him about the fact that he has not told us which other legislation the term “habitually resident” is in. However, that is probably enough from me for now, and I beg leave to withdraw Amendment 6.

--- Later in debate ---

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as chair of the Freedom charity. I apologise to the Committee for not being present for the earlier part of our discussions on these topics due to a commitment at the Department of Health.

This is an important principle. If the Minister is planning to respond by saying that the issue is adequately covered either in the clauses we have before us or elsewhere in legislation, I urge him to think again before giving the Committee that response. It needs to be made absolutely explicit that a forced marriage is not valid where there is any question at all that the person being coerced into marriage and who has entered into it does not have capacity. That capacity may be related to age—elsewhere in our legislation there has been all sorts of discussion about capacity and age, and some of the girls concerned are of a very young age—or it may be related to learning difficulties of various sorts. We therefore need to make it absolutely explicit in the legislation that this is intended to cover those circumstances where the individual concerned does not have capacity.

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Baroness, Lady Thornton, for her amendment. I also thank my noble friend Lady Hussein-Ece and the noble Lord for their contributions. The noble Lord alluded to the Freedom charity, which carries out notable work in this field, and I acknowledge his work and engagement in that arena.

Marriage without consent or the capacity to consent is totally unacceptable. Clause 108 specifies that an offence is committed if the perpetrator uses coercion and believes, or ought reasonably to believe, that their conduct may cause another person to enter the marriage without free and full consent. A person who lacks capacity to enter into marriage is incapable of providing free and full consent to marriage. In the cases that have come to the attention of the Forced Marriage Unit, some form of coercion has invariably been involved in forcing a person who lacks capacity to consent to a marriage. The new offences would therefore cover this behaviour.

Although I totally understand the noble Baroness’s concerns and those of other noble Lords, the definition of the new offences in Clause 108 already captures in practice the types of cases intended to be covered by this amendment. I take on board the point that the noble Lord made about looking specifically at this issue. Certainly, between Committee and Report we will look at the issue once again in the context of Clause 108. However, I assure noble Lords that Clause 108 is intended to capture that particular element. Marriage is voidable under Section 12(c) of the Matrimonial Causes Act 1973 on the grounds that,

“either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.

The issue was also raised of a vulnerable person getting a decree of nullity. The procedure to do so is available and a person can apply for a decree of nullity by filing a petition at any time after the marriage ceremony. If the application is not opposed, there is unlikely to be a court hearing and the person will not have to attend court. Following the petition, the court will issue a decree nisi and, following this, the applicant can apply for a decree absolute. The Family Procedure Rules make provision to ensure that these matters are straightforward for unrepresented applicants. However, having said all that, I fully acknowledge the points made by noble Lords about the special circumstances that they have mentioned. Having explained the scope of Clause 108, I hope that the noble Baroness is minded to withdraw her amendment.

[Baroness Thornton]

I thank the noble Lord for that explanation, which was a good attempt to describe the position. However, I am not convinced that capacity is covered in the Bill. Therefore, I will ask a lawyer what they think. Depending on what they think, and perhaps after further discussions with the Bill team, we shall see whether we need to return to this at a later stage. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, I have every respect for my noble friend and appreciate the genuineness of his concerns, but I am not persuaded—and neither is the Opposition—that it is appropriate to change the age at which people can be married from the current age of 16, with the condition, to which my noble friend has already referred, of parental consent. We have to recognise that 16 year-olds and above are increasingly sexually active. They can serve in the Armed Forces. Many people, including me, feel that they should have the vote at 16; indeed, they will do so in the Scottish referendum next year.

I accept the legitimacy of the concerns cited by my noble friend. However, the number who might be involved in marriage from 16 to 18 is not clear—or, at least, the evidence is not before us—let alone the number who are adversely affected in the way that my noble friend described. It is a large step to alter, on the basis of what we have heard, what has been the law for some considerable time. This is quite different from matters such as female genital mutilation and the forced marriage issues which we have discussed fully today. The Opposition will not, therefore, support this amendment if it is brought forward again on Report.

[Lord Ahmad of Wimbledon]

My Lords, I am grateful to the noble Lord for introducing this amendment on behalf of my noble friend Lady Tonge and for explaining that the rationale for it is, in effect, to raise the age of marriage to 18 years. I also thank the noble Lord, Lord Beecham, for his comments. This is one of those occasions when the two Front Benches are at one which people sometimes smile about.

[Lord Beecham]

Only when the Opposition are moving the matter in question.

[Lord Ahmad of Wimbledon]

I shall merely rise to reply, not rise to the challenge.

As noble Lords know, in England and Wales it is possible to marry from the age of 16, with parental consent, and from 18 without consent. The consequence of Amendment 8 would therefore be to make it impossible for a 16 or 17-year old to marry. While I understand my noble friend’s concerns, I do not believe this amendment is necessary because the law already provides adequate safeguards for children entering into marriages.

In England and Wales the provisions for the age at which a child can marry are contained in the Marriage Act 1949 and the Matrimonial Causes Act 1973. Section 2 of the Marriage Act 1949 and Section 11 of the Matrimonial Causes Act 1973 provide that any marriage, whether civil or religious, conducted in England and Wales, where either party is under the age of 16, would not be a valid marriage. If a marriage is solemnized and either or both of the parties is under the age of 16 that marriage will be void. For a child aged 16 or 17 to marry, the law requires the consent of the child’s parents or guardians, unless the child is a widow or a widower. These provisions recognise that, while children of this age may have the maturity to enter into marriages, it is still necessary to ensure that they are afforded some level of protection in doing so.

The Government believe that the current provisions provide appropriate safeguards for children entering into marriages. We therefore do not consider it necessary to amend the age at which people can enter into a marriage. The noble Lord has referred to the UN Convention on the Rights of the Child but the convention does not address the issue of marriage. Accordingly the law relating to marriage, including the age at which a person can consent to marriage and can marry, is a matter for determination by the national law of those states, including the United Kingdom, that are a party to the convention.

My noble friend Lady Tonge is also understandably concerned, as we all are, about forced marriages. While I share her desire to do more to stamp out this abuse, the amendments as tabled are not the best way of doing this. We have just debated provisions to strengthen the law in respect of forced marriage, thereby making it a criminal offence to breach a forced marriage protection order and making it an offence to seek to force someone to marry. This is combined with a significant nationwide engagement programme and the work done by the Government’s Forced Marriage Unit to give direct support to victims and potential victims.

Amendment 12 to Clause 109 seeks to make identical provision in the case of Scotland. Marriage law is a devolved issue and Scotland has its own marriage laws. I therefore cannot comment on behalf of the Scottish Government. The noble Lord will be aware of the convention that the United Kingdom Parliament does not legislate on devolved matters in Scotland without the consent of the Scottish Parliament.

I take on board the noble Lord’s point about further discussions between stages of the Bill. I am always open to discussions on all these matters. As I said earlier, this is an important matter and this is about getting it right. If the noble Lord or my noble friend wishes to meet me I shall be delighted to do so. Based on that explanation, I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Rea]

I thank the noble Lord for that full reply, especially as it is perfectly clear that he does not agree with the amendment. He gave it a lot of time and consideration and I had always intended to withdraw. I therefore beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton]

The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lady Berridge and the noble Baroness, Lady Cox, for raising these important issues, which I shall address in turn. As both noble Baronesses will know, I take this issue very seriously: it needs to be addressed and the issues that have been raised are perfectly valid, as the noble Baroness, Lady Thornton, has said. I also thank the noble and learned Lord, Lord Hope of Craighead, for his contribution. He has raised one or two matters which I shall certainly take back to officials to discuss further.

As my noble friend has explained, it is crucial for victims of forced marriage to be able to ensure that the marriage that they have been forced into is subsequently rendered void as a matter of law. While I agree that this is important, especially to the victims of this crime who rightly want clarity on where the marriage stands in the eyes of the law, there are reasons why the Government feel that this amendment is unnecessary. Under the current law, if a forced marriage takes place, victims can apply to the court to end the marriage by divorce or annulment. If a victim wishes to apply for an annulment, it must be shown that the marriage was either void or voidable. The grounds on which a marriage is void or voidable are set out in the Matrimonial Causes Act 1973.

A forced marriage is voidable by virtue of Section 12(c) of the 1973 Act, which provides that a marriage will be voidable on the grounds,

“that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.

If a victim wishes to apply to the court for an annulment on these grounds, and the court grants the decree of nullity, the annulment will take effect on the date on which the decree of nullity is issued. This amendment would mean that if a conviction for an offence of forced marriage occurred, the court would be required to issue a decree of nullity. The date on which that decree of nullity would take effect would be the date on which the perpetrator was first charged with the offence. I understand totally the sentiments behind the amendment tabled by my noble friend, but I do not agree that the process by which a victim can seek to end a forced marriage, and the date on which that marriage ends, should be determined by reference to whether a conviction for forced marriage has taken place. Such an approach provides no flexibility for victims whose perpetrators are convicted of an offence of forced marriage to choose how they wish to end their marriage. It would also be unfair to those victims whose perpetrators are not found guilty of the offence of forced marriage, and who would have to continue to rely on the current law to end their marriage.

Victims of forced marriage experience a range of specific extenuating factors, as a consequence of which they may wish to have a divorce rather than an annulment. For example, there may be children involved, as my noble friend pointed out, and property rights to consider. As a result, they may prefer a specific legal route to end their marriage. Preserving a victim’s choice is the intention behind the Government’s proposals. We are seeking to provide flexibility to victims who, on seeking legal advice, can end their marriage as and when they see fit. I hope that, having heard this explanation, my noble friend is reassured about where the Government currently stand on this issue.

Perhaps I may now turn to religious marriages, the issue focused on by the noble Baroness, Lady Cox. I pay tribute to her because I know that she represents women’s interests very widely and that this is an issue on which she does not seek to target any particular faith or community. However, she recognises fully that many, if not all faiths, protect such marriages. Unfortunately, it is the case that some of the practices do not live up to the theology. As the noble Baroness has explained, the purpose of her proposed new clause is to create a new criminal offence, under Section 75 of the Marriage Act 1949, of solemnising a marriage according to any religion so that the couple getting married believe they are validly married when in fact the marriage is not valid under that Act. This proposed new offence clearly arises from a desire to help couples who have a religious marriage ceremony that they think is perfectly valid, but which has no legal status because the requirements of the law in England and Wales have not been complied with.

The legal position in respect of religious marriages in England and Wales is that anyone who wishes to contract a religious marriage and acquire a legal marital status has two options. They can either have a religious marriage and a separate secular civil ceremony or they can choose to solemnise their religious marriage in a place of worship registered to conduct marriages, thus removing the need for a separate civil ceremony. Where a marriage is invalid for want of the appropriate formalities or other elements, this does not necessarily leave the parties without any remedies. If the marriage purports to be in accordance with the provisions of the Marriage Act but does not fully comply with those provisions, it may be void under Section 11(a) of Matrimonial Causes Act 1973. This section enables a party to the marriage to apply to the court for a decree of nullity and the court is able to make orders in respect of children and the division of property in the same way as on divorce. We believe that this will provide protection for some of the couples whom the noble Baroness seeks to protect with her amendment.

The Government accept that there will be some religious marriages to which Section 11(a) will not apply. In such cases, the courts may be able to view the marriage as being valid in principle and, as such, susceptible to a decree of nullity. The court will determine such issues on a case by case basis and will consider issues such as whether the ceremony or event set out or purported to be a lawful marriage, whether it bore all or enough of the hallmarks of a marriage, and whether the parties acted in good faith. If the court is not able to make such a finding, again, that does not mean that the spouse will be left without any form of redress. For example, it would still be possible for the court to make an order for financial relief in respect of any children under Schedule 1 to the Children Act 1989. While the Government are keen to ensure that any person who enters into a purported religious marriage in good faith has adequate protection before the law, we do not consider that making the solemnisation of purported religious marriages a criminal offence is the correct way forward. This would, in our view, involve unjustified interference in people’s private and religious lives.

However, the Government take these matters, as raised by the noble Baroness, Lady Cox, very seriously. Even though we may differ in how best to deal with it, the sentiments are certainly much the same. We want to ensure that couples seeking a religious marriage are aware of the need to have a civil marriage as well. If this is to be achieved, it must be with the support of religious leaders and must not be seen as an attempt to dictate to them or undermine them.

--- Later in debate ---

[Baroness Thornton]

My Lords, I added my name to that of the noble Baroness, Lady Manzoor, on this amendment because we think that if we end up criminalising forced marriage, we need to look very carefully at how that works out. I very much agree with my noble friend Lord Harris that this should be about the totality of the work of the Forced Marriage Unit. How the Government decide to do it is not the point. It is important that these things are monitored regularly, so I think that “in due course” is probably not a satisfactory answer on this occasion.

[Lord Ahmad of Wimbledon]

My Lords, first, I thank my noble friend Lady Manzoor for her amendment. I welcome her to what I think is her first contribution to legislation in this Parliament. As has been demonstrated today and in her maiden speech, her contributions are always welcome and based on her great expertise and experience, of this issue in particular.

The proposed new clause would place a duty on the Secretary of State to report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 10 of this Act. The Government are indeed happy to update Parliament on the progress of our work in this area. I hope that the various exchanges and discussions we have had, which I have certainly found very valuable, as I am sure all members of the Government and, I hope, the House have, underline the Government’s commitment to look at this issue very seriously.

Noble Lords are correct: this is not about coming back “in due course”. I say to my noble friend Lady Hamwee that I will not be saying that. What I will say is that the Government are concerned that this issue is addressed and dealt with appropriately and that the appropriate debates, discussions and questions take place as and when, but the issue remains one of Parliament. Parliament has open access here. Questions and debates can be tabled as appropriate. I do not, however, believe for a moment that an issue as important as this will be left, for us to return to at some future point. I am sure that the Government will be seeking to update Parliament regularly on work in this important area.

I will allude briefly to the issue of female genital mutilation. I accept that although a law has been enacted, prosecutions have not followed, but let me again reassure my noble friend, the Committee and the wider House that the Government take this seriously. My right honourable friend the Foreign Secretary has made this a personal priority. I will talk about it in a moment.

Once this piece of legislation receives Royal Assent, there is a period of three to five years for post-legislative scrutiny. As I have indicated, the Government accept that, on an important issue such as this, we will be returning to it earlier than that. In the case of the forced marriage provisions, the Government’s Forced Marriage Unit, through its direct work in assisting victims and those at risk of forced marriage, has the capacity and function to monitor the difference that legislation will make to victims of forced marriage. The unit, as many noble Lords will know, runs a helpline providing confidential advice and support to victims and to practitioners charged with the responsibility for safeguarding children and vulnerable adults, ensuring they are fully informed on how to handle such cases. The number of reports to the helpline has steadily increased since the unit was established in 2005. In 2012 the Forced Marriage Unit provided advice and support in almost 1,500 cases. It will regularly update Ministers on any issues identified with the new laws and make recommendations on any necessary policy changes.

My noble friend Lady Manzoor referred to the lack of prosecutions for FGM and asked whether forced marriage will be different. I would like to reassure my noble friend that we will also monitor the number of prosecutions brought, and we will want to understand the reasons why cases are either not referred to the CPS or not proceeded with by the CPS if that should prove to be the case. That said, it is important to remember that the Government’s priority in criminalising forced marriage is prevention, a sentiment I know is shared across the House. This legislation has been designed to send the clear message that forced marriage is unacceptable, it is a breach of human rights, and perpetrators will be punished.

My noble friend talked about options. We know that legislation alone is not enough to address issues, and we will endeavour to work with partners across government, with non-government organisations and other experts in the field to ensure that victims and potential victims of forced marriage are aware of the support and options available to them. As I said to my noble friend Lady Hamwee in an earlier debate, it is important that a civil remedy remains available to victims. This means that victims could choose to take a civil route or go to the police, as they can now. I reassure my noble friend that, in respect to FGM, the Government will do everything in their power to ensure that victims can come forward and their abusers face the full force of the law.

The Department of Health is working to improve the information collected by the NHS on FGM. The Home Office has recently announced it will help fund a new study into the prevalence of FGM in England and Wales. The Department for International Development has established a £35 million programme to address FGM in Africa and beyond, with the ambition to end FGM in one generation. The level of international co-operation to which my noble friend alluded is certainly working well there.

The Government have also joined forces this year with the NSPCC and the Metropolitan Police to establish a dedicated FGM helpline. But as we know, there is much more that needs to be done, which is why the Home Office is working closely with the CPS to ensure that the Government are doing everything they can to help secure a prosecution. I am greatly encouraged by the assessment of the Director of Public Prosecutions that it is only a matter of time before a perpetrator is brought to justice.

I will just pick up on one or two other issues that were raised. The noble Lord, Lord Harris of Haringey, and my noble friend Lord Faulks mentioned the importance of coming back to Parliament on this. As I have already said, the Government take this issue seriously. I hope that has come across in today’s debates. I also acknowledge the very important point made by the noble Baroness, Lady Kennedy, that education must be a major component of how we start to address some of these issues of marriages, particularly those that take place in certain communities. As for marrying into families and that continuing, my noble friend Lord Hussain talked about how clans and tribes work. He used the word “brathries”—I am not sure Hansard needs a translation, but it generally means within a brotherhood. I hope that clarifies that for the Hansard writers.

This is the last amendment in the group on forced marriage. I share my noble friend’s desire—and that of all noble Lords—to ensure that new legislation is effective. I will be happy to update the House on the progress of our work in this area. The Government would of course expect to be held to account through the usual parliamentary oversight channels.

Before I ask my noble friend to withdraw her amendment, I just say this: forced marriage is a terrible act; it is a heinous crime. Coercion in marriage has no place in our or any society. The Government seek ultimately to strengthen a victim’s access to justice. I know that is a sentiment we all subscribe to. Our country is an incredible place, one that encompasses all people, all communities and all faiths, but we must hold those who commit these crimes to account and help those who suffer as victims to ensure that they have the opportunity to take to task those who commit these crimes. On that basis, and with the explanation I have given on this issue, I hope that my noble friend will be minded to withdraw her amendment.

[Baroness Manzoor]

I thank my noble friend the Minister for his considered response. I know his personal commitment to this issue. I also thank the many noble Lords who took part in this debate. They have been both passionate and certainly much more eloquent than I have. I entirely agree with the observations made by the noble Lord, Lord Harris, and my noble friend Lord Faulks—noble Lords will have to forgive me as I am just getting to terms with knowing everyone’s names. I am very pleased by the Minister’s response but when he says that he will come back and report to Parliament, how often is that likely to be?

--- Later in debate ---

[Lord Ahmad of Wimbledon]

All I will say to my noble friend is that, as I have already indicated, the Government will be held to account. That is something that will be discussed through the usual channels, but my noble friend has an opportunity, as a Member of your Lordships’ House, to raise a Parliamentary Question or debate. As I said, the Government take this issue seriously. Once this becomes legislation and passes into law, as I hope it will, it is certainly an issue that the Government will return to, not least because we believe it is important to update the House. It would not be appropriate for me at this time to give a specific target date: that would be presumptuous. Nevertheless, as I said, the option is even open to my noble friend to hold the Government to account.

[Baroness Manzoor]

I thank my noble friend. I will, along with other noble Lords, do that. I beg leave to withdraw the amendment.

Legal Aid

Lord Ahmad of Wimbledon Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I add my congratulations to those of noble Lords who have already spoken to the noble Baroness, Lady Deech, on securing the debate and the way in which she opened it. I also declare an interest as a practising barrister. My noble friend Lord Phillips of Sudbury, who is unfortunately unable to be here, asked me to say that, as one who has fought for legal aid all his professional life, he wishes that he had been able to contribute to this debate.

In the debate on the gracious Speech, I suggested that there was a need for a fresh settlement between the Government and the professions over legal aid. I am bound to say that the past few weeks have more than ever convinced me of that. The Government and the professions appear at times to be in a hostile stand-off. It is bad for both the Government and the professions, but it is also bad for justice and bad for the public’s confidence in our system of justice.

The starting points are that we recognise the need to save money in this area and that the professions must recognise that the Government do not owe them a living. However, the Government must accept that the professions are not simply special pleading but have genuine and justified concerns about access to justice for the many who need, but who cannot afford to pay, lawyers. Of course, they include the most vulnerable in our society, but we should not forget that they also include millions of ordinary people who can meet their day-to-day expenses but cannot afford the sudden demands of expensive legal costs for them or their families.

A new settlement can be achieved only by dialogue, and it is therefore welcome that the Government have already been responsive to the consultation, particularly over the issue of choice of lawyer. For myself, I regard the right of a defendant to choose his lawyer as fundamental for three reasons. First, it is wrong for the state which prosecutes a case to choose the lawyer on the other side. Secondly, it is essential for a defendant to have confidence in his lawyer. That brings practical benefits in sensible and early guilty pleas where appropriate. Thirdly, choice in this area is a simple matter of liberty.

I confine myself in this short speech to making a handful of points about the Government’s proposals. Much of the controversy has of course centred on PCT. I suggest that there is much force in the argument that competition based on price rather than quality risks lowering standards. If we set only a minimum standard, we will get advocacy of a minimum standard—the so-called race to the bottom. Tendering should be based on quality as much as on price, and that should be made explicit in the application process. A precedent for that is to be found in the Health and Social Care Act, where, on persuasion, substituting competition on quality against a tariff for the original proposal for competition on price significantly improved the Government’s proposals.

The Government have invited the Bar Council to help to design a system of tendering based on quality. It is a matter of regret that the Bar Council has not accepted that invitation. Exactly that kind of dialogue is what I consider to be important. When the noble Baroness, Lady Deech, next sees the Bar Council she might consider taking that back to suggest a change of view in that area.

A further area of concern is the number of providers and their distribution. I believe that a reduction from 1,600 to only 400 providers is far too great. It will badly affect smaller firms and reduce the possibility of both choice and competition.

Attention has been drawn to the problems in multi-handed cases, where a number of defendants may need separate representation. However, I suggest that those problems could be addressed in part if we reconsidered how far the existing professional rules on conflicts of interest are working in accordance with the public interest. Should it not be possible for solicitors in the same firm to act for defendants in legally aided criminal cases where there are conflicts between the defendants’ accounts but no financial conflicts of interest for the firms concerned? Of course, there would have to be safeguards in such a system to ensure that confidentiality was maintained, but barristers in the same chambers have always appeared against each other and the distinction between self-employed barristers and partners in the firm is not, in my view, an overwhelming obstacle.

However, the present proposals risk creating advice and representation deserts where no appropriate legal advice or representation is available. This the Government have recognised, but the proposals also risk creating specialism deserts. The danger of advice deserts could be addressed by increasing the number of providers in more sparsely populated areas. The specialism issue is more difficult. I fear it may become impossible to find solicitors specialising in particular areas of crime—for example, fraud or sex offences—throughout large areas of the country. Correspondingly, specialist lawyers may find that work in their fields is not financially supportable, so specific measures are needed to allow specialists to practise.

I turn briefly to civil legal aid. The proposals on judicial review are claimed by the Government to assist in ensuring that applicants’ lawyers will be paid only for cases in which they get permission, which will filter out weak cases. However, in practice many of the strongest cases are settled at the pre-permission stage where the body, often a local authority, admits fault and settles. Why should we not fund cases such as those, especially since the Government are rightly committed to encouraging early and economical settlement of litigation? The proposal to deny an oral permission hearing in all cases deemed to be totally without merit, while it may be acceptable in cases where there is legal representation, is entirely unacceptable in cases where a judge is needed to tease out the applicant’s case on an oral hearing.

Finally, in the time available, I shall say a word or two about the residency test. I suppose it is possible to conceive of arguments about why the residency test may be at least a relevant consideration in some cases, but given the examples set out by the noble and learned Lord, Lord Irvine, it is very difficult to see that it can be imposed justly in a blanket way. If the Government are not prepared to reverse this proposal, I urge them at least to preserve a discretion. There are other areas for consideration, but I look forward to hearing the Government’s response.

[Lord Ahmad of Wimbledon]

My Lords, before the next speaker, I remind noble Lords that this is a time-limited debate, and the limit for speeches from the Back Benches is six minutes.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I, too, express my gratitude to the noble Baroness, Lady Deech, for securing this timely debate. I also declare that I am a practising barrister. I am the chair of Justice, the pre-eminent policy organisation working on the rule of law here in the United Kingdom and the British arm of the International Commission of Jurists. I am also the co-chair of the International Bar Association’s Institute of Human Rights.

My practice at the Bar, and my work with these organisations at a high level, have absolutely convinced me of a number of things. One of those is that I do not need to persuade people of the vital role of just law here in Britain and in societies around the world. It is also a constant reminder to me of the place of the United Kingdom as a source of influence and admiration the world over. Our judges are universally admired and drawn upon for their skills. Our professionals are deemed to be of the highest calibre and international courts comment regularly on the quality of the lawyering from this country. Our legal institutions are, in my view, the finest in the world—and that is not an idle boast. It is not an accident that we have such a fine system. It is great partly because it has taken us a long time to get here; we have built our success out of the hard stones of experience over many generations. Quality, we have learnt, does not come cheap.

This issue, I emphasise, is not just some hysterical pay negotiation as it has been caricatured. Governments wanting to cut legal aid always reach for a base argument, which is to crack the cynical joke about fat cat lawyers acting like a cartel to fix their fees. I hope we will not hear comments about the large number of lawyers speaking in this debate. The reason lawyers speak about these matters is because it is lawyers who see at first hand the impact on ordinary people of savage cuts. They also see the inevitable impact on the quality of work across the board, and they foresee the desperate effect this will have on the system as a whole, not just the risk of injustice but inhibitions on the development of law. Politicians often see cost cutting as a form of surgery, taking off some excess fat, but like the demand by Shylock for his pound of flesh, the removal does not come without real bloodletting and a very serious risk to the health of the body legal.

This debate is actually about an important constitutional issue, as others have said. It is a constitutional issue because legal aid has an important constitutional function. It is about access to justice, but it is also about the integrity of our criminal and civil justice system as a whole. Further, it is a constitutional issue because it is about holding government and public bodies to account. It is not just legal aid lawyers who are complaining, it is judges, commercial lawyers, academic lawyers who study the effects of law on people’s lives, and indeed most lawyers who see that the system is of a piece and that taking the shears to parts of it has implications for the whole. Justice is a central component of any civilised society and we have to maintain trust in it.

The lack of rigour by the Government on this topic is not new. The Joint Committee on Human Rights, on which I serve, regretted the failure of the Government to grapple with the human rights implications of the proposals in LASPO. I am afraid that we are seeing it again. It was only after long and contentious arguments in both Houses that the Government recognised that they would almost certainly face successful human rights challenges if legal aid was not available to the victims of domestic violence, human trafficking or other egregious wrongs. That was when carefully crafted exemptions were created. Yet the proposals in these reforms will substantially undermine those exemptions. It is quite wrong that such important changes should come into being through secondary legislation. As the noble Baroness, Lady Deech, said, they should be subject to the proper scrutiny of Parliament, as was LASPO, and there should be primary legislation. I urge the Government to slow down and think carefully about this.

I enjoyed the account of the noble Lord, Lord Faulks, of being rejected as a barrister by knowing clients. The only time it happened to me was when a woman in Broadmoor on trial for arson looked at me and said, “She’s too small”. It was because she had seen the prosecutor, Tim Barnes, a man of six feet six inches, and obviously thought that the trial process involved some sort of wrestling or armed combat.

The message that in practice we send to the Government is that justice cannot be produced on an assembly line or by bulk buying. What the Government had in mind with their competitive tendering proposals was to give a contract to the cheapest tender. Those ideas about going for the cheapest are still afloat. The cost-cutting is about one lawyer doing a great number of cases and not looking for the specialist. I want to emphasise that some cases require specific expertise, an issue that has been raised. Some clients have a relationship with a particular law firm and it saves time and money to have that firm act for them. Sometimes the case may concern mental health, and lawyers come to have rich knowledge about particular subjects, especially in the interface of law and psychiatry. Sometimes the expertise is in the field of domestic violence, child welfare or counterterrorism, the area in which I have spent a lot of my life. Some specialise in cases that involve abuse of the most terrible kind. A massive reduction in legal aid will interfere with this considerably.

I am still concerned about the flat fee, where people will receive the same fee whether there is a guilty or a not guilty plea. It means that solicitors, human as they are, will have more incentive to get their clients to plead guilty since a not guilty plea entails considerably more work. At the moment, 73% of people plead guilty, but they do so because of the trust they have in the advice of their lawyers. Once they think that a lawyer might be pushing them in a certain direction for financial reasons, trust will be destroyed, and trust is at the heart of good institutions. If the Government want to see the kind of chaos that price-competitive tendering brings to justice, they need only look at the issue of interpreters. Barristers wait for days in court for Serco, which now deals with the interpreter system, to deliver an interpreter. I have heard of young barristers storing multilingual phrases in their phones so that they can explain to their clients that the interpreter has not turned up. Also, the defendant is often not produced by Serco. The waste in the criminal justice system is often about large companies bidding for and securing a contract at prices on which they cannot deliver. We then end up with no cost savings at all.

[Lord Ahmad of Wimbledon]

I remind the noble Baroness that the debate is time limited, which means that when the clock shows six minutes she should be looking to sit down at that point. That is a reminder to all noble Lords.

[Baroness Kennedy of The Shaws]

This is about preserving the quality of our system. Wonderful legal aid lawyers do that, and this is a way in which they are being undermined. They deserve better.

[Lord Ahmad of Wimbledon]

My Lords, before the next noble Lord speaks, I must insist that this is a time-limited debate. I have had to intervene for a second time. It eats into the time of the Front Bench, the Minister’s time, and that of the Opposition Front Bench. I request all noble Lords participating that when the clock shows six minutes, it means that they should sit down.

Offender Rehabilitation Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 9th July 2013 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have participated in this debate. The noble Lord, Lord Beecham, has once again returned to the very important issue of providing support for ex-service personnel impacted in this way who find themselves involved with the criminal justice system.

However, we should not lose sight of the fact that the vast majority of men and women who serve in our Armed Forces go on to lead successful, law-abiding lives. Ex-service personnel are an important asset to the economy of this country and any employer should welcome the skills that they bring to any job. I also pay tribute to all the brave men and women who serve in our Armed Forces and continue to do so with great distinction and honour. We pray for them, particularly those who find themselves on the front line as we speak today.

The noble Lord, Lord Beecham, has already mentioned the meeting he had with my right honourable friend Damian Green, the Minister who sits appropriately in both the Home Office and the Ministry of Justice and who is ideally placed to consider the issue of ex-service personnel who find themselves in the criminal justice system. That meeting was attended by not only the noble Lord, Lord Beecham—as he has acknowledged—the noble Lord, Lord Ramsbotham, David Anderson, the MP for Blaydon, and my honourable friend Oliver Colville, the MP for Plymouth Sutton and Devonport, were also present. Therefore, it is fair to say that there is support for looking at this important issue both here and in the other place, throughout the country and across the political spectrum.

Also at that meeting were a number of representatives of veterans’ groups, such as Tony Wright of Forward Assist. I know that my right honourable friend Damian Green particularly welcomed their input and the information that they supplied about the experiences of ex-service personnel. One of the key things that emerged from that meeting is that the focus is not necessarily on ex-service personnel who are in prison. It is of course important that we continue to develop services for those who are in custody, such as the veterans in custody support officers, and expand the specific guidance that is produced in collaboration with interested government departments and the important voluntary sector.

As I said in Committee, it will be important to have tailored supervision for ex-service personnel on release, including, for example, mentoring from those with service backgrounds—a subject that we have talked about previously. So while we continue to work with ex-service personnel in custody, we also need to focus on those who receive non-custodial sentences or those who can be diverted from the criminal courts altogether. We believe that there are a number of ways to address offending by veterans at that level. For example, we could look at the programmes that are available as part of conditional cautions, which are administered by the police.

The noble Lord, Lord Beecham, also mentioned the US experiences. That is something that the Government are also looking at. For those receiving community orders or suspended sentence orders, there are powers available to the courts to review sentences, essentially to monitor progress of that particular order. We suspect that these approaches might benefit some ex-service personnel. However, we need to know more about the problem of offending at this level in order to decide what the best solution is.

One of the most striking things raised by veterans’ groups is the lack of detailed information about the scope and nature of offending by ex-service personnel. That point was well made by the noble Lord, Lord Beecham. Even in prisons there are significant differences in the estimates, ranging from 3% of the population to 11%. For those involved in less serious offending, the information is even less clear. That is why we want to work with the veterans’ groups to try to establish a better understanding of the nature and extent of offending. If we have that information, we believe we can focus better on a response.

The Government are already taking forward work to look at the data that are available. I am also happy to make a commitment that the Government will produce an assessment of the issues identified, as raised in this amendment, including a veterans’ court and other mechanisms to provide support. We will share that assessment with noble Lords. I am also confident that we will be looking to complete this particular assessment and share the findings with noble Lords within the coming year.

Likewise, I reassure noble Lords that we will continue to consult relevant groups. We want to discuss the issue with other key government departments, such as the Ministry of Defence, as well as the Department of Health and the Department for Work and Pensions. We will also need to talk to the judiciary about its experience of dealing with ex-service personnel.

Offender Rehabilitation Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 25th June 2013 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have taken part in this debate, in particular my noble friend Lady Linklater for tabling her amendments.

Amendments 4, 6 and 15 all relate to the supervision of young adult offenders. The aim of Amendment 4 is to exempt offenders sentenced when they were under 18 from receiving top-up supervision, even if they were 18 or over when released from custody. Amendment 6 is, I understand, an alternative approach to Amendment 4, because it applies to those offenders who are under 18 when sentenced and requires that such offenders may be supervised by a member of the youth offending team. The last amendment in this group, Amendment 15, relates to offenders subject to detention and training orders—or DTOs—and, as I understand it, would apply top-up supervision to offenders if they were 18 or over at the halfway point in their sentence and they were under 21 on the last day of the supervision period.

At the outset, I should say that we believe there are a number of technical issues with these amendments, which I shall briefly highlight. However, like the noble Lord, Lord Ponsonby, I am generally sympathetic and understand totally the general thrust of the amendments as tabled. Amendment 4 would mean that an offender sentenced when under 18 years of age, regardless of sentence and regardless of their age on release, would not be subject to top-up supervision. Although not part of the amendment, this would in effect render Clauses 4 and 6 redundant, since they set out how offenders turning 18 during custodial sentences are supervised. In response to Amendment 4, I also stress that the Government believe that our commitment to provide 12 months’ supervision should apply to all those aged 18 and over when they reach the point when they would be released from custody.

We all recognise that offenders who have just turned 18 can have different needs from older adult offenders. The National Offender Management Service has been developing and translating the evidence base to support more effective targeting of interventions with young adults in custody. We want to work with providers to ensure that their needs are met as they move back into the community. When supervising young adult offenders who have just turned 18, we will expect providers to recognise this difference and tailor their supervision to the particular needs of the group—and, as my noble friend highlighted, they are particular needs. It is certainly in the interests of providers to do so, because this is an important and challenging group in terms of reoffending. To make a significant change in the levels of reoffending requires us to tackle this group and recognise the support they need as they transition into adulthood and adult services. Young adults are at the peak age for desistance from offending, and we want to ensure that they are given every opportunity to desist sooner.

I do not believe that supervision is a hindrance for young adult offenders. In fact, the Government see this as a real opportunity for real support for young adult offenders, not as something that they should be excluded from. As my noble friend acknowledged, at this age, young people as they transition to young adults are looking for greater levels of support. Therefore, the supervision element will surely assist them and provide an opportunity for that development. So I hope that my noble friend can reconsider and withdraw this amendment.

Amendment 6 offers an alternative approach. It also deals with the application of top-up supervision. In short, it is designed to ensure that any offender who was sentenced when under 18 and who is released aged 18 or over, so is subject to top-up supervision, must be supervised by a youth offending team—or YOT. I say this is an alternative approach because, if Amendment 4 were to be adopted, no offenders sentenced when they were under 18 would be subject to top-up supervision. That said, I understand the thinking behind this amendment. The fact is, however, that these offenders may under current arrangements be supervised by probation providers.

Under the current arrangements, when the offender’s behaviour is challenging or when there are additional offences yet to consider, it can be agreed that it is more appropriate for probation providers to supervise the offender on release rather than a YOT worker. This is a decision that happens every day between probation and YOT professionals, based on their professional expertise, taking account of the interests of the particular offender and their particular needs. My noble friend Lady Linklater and the noble Lords, Lord Ponsonby and Lord Ramsbotham, all referred to the importance of the professionals’ expertise and their particular needs. It is that professional expertise that we want to home in on. After all, who are we seeking to assist but the young person, in ensuring that their needs are met? We believe that this flexibility for dealing with young adult offenders on release should be retained, because it is likely to provide for the most effective ways to rehabilitate this crucial group. Put in a summarised form, it empowers professionals to make the best decision in the interests of the given individual.

Finally, in this group, I turn to Amendment 15, which relates to Clause 6. The clause deals with offenders serving detention and training orders who turn 18 before or at the halfway point of their sentence. The DTO is the main custodial sentence for under-18s. It is imposed for a fixed period of months, with the first half spent in custody and the second half under supervision in the community.

Just as an aside, while I have not been involved from the magistrates’ point of view, I have worked with such teams in the community and I have seen the practical benefits of the Youth Justice Board. In my own experience as a councillor, a community park was created down to the efforts of that particular team, and it was amazing what they went on to do in the community on their release.

Clause 6 provides for top-up supervision for offenders serving DTOs who turn 18 before they are released from the custodial part of their sentence. In this way, as with other adults on release, they will receive an overall period of 12 months of supervision in the community. I am not totally clear about the intended effect of this amendment, but it appears from what my noble friend has said to be an attempt to carve out a cohort of young adults who qualify for YOT supervision. As tabled, it applies top-up supervision to offenders who turn 18 at or before the halfway point of the DTO and would be under 21 on the last day of the supervision period. The additional requirement in this amendment, that the offender must be under 21 on the last day of the supervision period, is unnecessary because, even if an offender was sentenced on the day before their 18th birthday, given that the maximum period of a DTO is two years, it is inconceivable that any offender would be 21 or over at the end of the supervision period.

By removing and replacing proposed new Section 106B(1)(b) of the 2000 Act, the amendment would also remove the exclusion of those offenders sentenced to a 24-month DTO. That provision is important, because a 24-month DTO includes 12 months of supervision, so top-up supervision is unnecessary. As I said, I do not want to go into the technical details but, in short, the Government believe that it is important that those sentenced to the shorter DTO sentences who are 18 at the halfway point should receive an overall period of 12 months of supervision in the community as we are providing for other adult offenders. I stress again that it is the same period of supervision, but it need not be the same type of supervision. That is why we have flexibility in regard to tailoring services to young adult offenders. I acknowledge the fact that there is no one-size-fits-all approach in this way of dealing with young offenders.

I shall pick up on a couple of points that were raised during the debate. My noble friend Lady Linklater talked about delivering top-up supervision for those sentenced as juveniles who are turning 18. Arrangements for supervision of young offenders on release from a DTO are flexible, as I have already said, which allows for local agreement as to the most appropriate provider of supervision. I assure her that it will be tailored to the individual circumstances of the offender, their age and the risk of reoffending—a point well made by the noble Lord, Lord Ponsonby. The Bill provides for supervision top-up to be delivered by either the YOT or probation providers.

My noble friend also referred to the issue around transition, which was a very important point. I assure her that the Ministry of Justice, NOMS and the Youth Justice Board recognise that transition between youth and adult services is a potential point of vulnerability for young people. Indeed, we all acknowledge that. The MoJ, the Youth Justice Board and NOMS are already working closely together to help improve support for young people who are transferring between the youth and adult justice systems. For example, in September 2012 the YJB and NOMS respectively launched the transitions framework, to provide guidance for providers working with young people in the community, and the transitions protocol, to guide those working as custodial practitioners. Those promote better practice and aim to improve information sharing. NOMS and the YJB have already invested over £4.1 million in the development of the youth-to-adult portal, to improve the quality and quantity of information transferred between youth offending teams and the probation services. We are now looking to see how this service may be extended for use with other providers.

We all agree that this is a crucial group, with particular needs that need particular attention. I associate myself entirely with the sentiments of my noble friend and those of the noble Lord, Lord Ponsonby. We do need to tackle those needs directly, but it is our view that the Bill gives us the opportunity to do that, and to achieve exactly what we seek. I therefore hope that my noble friend is reassured, that she recognises the Government’s commitment to that group, and that she feels able to withdraw her amendment.

[Baroness Linklater of Butterstone]

I thank my noble friend for that comprehensive reply—and for pointing out the technical hitches. However, the message that we have been given about flexibility is much more important. It is important that inexperienced and new probation providers are not brought into this scene. Transition is, of course, fantastically important, as is professional expertise. Part of my theme was that the combination of partnership working between various professionals in the field—the YJB, the YOTs and the probation service, and also other services working with families in the community—has been developing, and makes a tremendous difference to the life chances of those young people. If that is combined with flexibility, it will work in everybody’s interests.

The YJB is particularly keen for families to be more involved, even when their offspring have reached the age of 18. We all know that, even if it is not apparent, such young people are often very immature and in need of family support—when it is there, of course; very often it is not.

In general, the landscape is enlarging with partnership working, which is becoming very constructive, and will be even more so if we can be sure that this very vulnerable group, which hitherto has not been entitled to any kind of supervisory help, will have it in a properly tailored and managed way. Bearing all that in mind, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Ahmad of Wimbledon]

7: Schedule 1, page 22, line 12, leave out “condition” and insert “requirement”

[Lord Ahmad of Wimbledon]

My Lords, the government amendments in this group make a number of minor technical changes to the Bill. In essence, they ensure that terminology is consistent within the Bill and with other legislation.

Amendments 7 and 8 relate to the new “drug appointment requirement”. The amendments replace, in two places in Schedule 1, the word “condition” with “requirement”, which is the term used with other requirements of the new supervision period and is consistent with the title of the requirement.

Amendment 10 relates to the provisions dealing with supervision default orders: that is, when an offender has failed to comply with a condition of their supervision. The amendment simply clarifies that copies of the supervision default order must be sent to the supervisor who is responsible for supervising the offender during the supervision period.

Amendments 11 to 14 relate to Clause 5 and the arrangements that exist where an offender is subject to consecutive sentences. The amendments replace the term “offender” with the more usual construction “P”. This is consistent with the terminology used in the Criminal Justice Act 2003, which Clause 5 amends.

Finally, Amendment 20 relates to Schedule 6, which deals with offenders sentenced by service courts. The amendment clarifies the position in that it ensures that the definition of “the appropriate court”, which relates only to civilian courts, does not apply to overseas community orders under the Armed Forces Act 2006. As I said, these are small clarifications and technical amendments. I beg to move.

[Lord Beecham]

My Lords, there comes a temptation to move that any of these riveting amendments be piloted. I am happy to concur with the Minister’s proposal.

--- Later in debate ---

Moved by

[Lord Ahmad of Wimbledon]

8: Schedule 1, page 22, line 33, leave out “condition” and insert “requirement”

--- Later in debate ---

[Baroness Hamwee]

My Lords, I declare an interest as one of the three joint presidents of London Councils. I have seen the briefing from that body and support the points that have been made. I entirely agree with my noble friend that “bottom-up” is best, but sometimes structure is needed to allow these things to function well. I am not sure whether the example I am going to give is appropriate, but I will give it anyway.

In the London borough of Sutton, where this issue is “bottom-up” but structured, there is a very interesting partnership between the local authority and the police. The structure is such that there is joint management of certain services provided by those two parts of the public sector. Sutton tends not to go in for strident self-publicity so it does not seem to have made very much of this, but what it has done is extremely interesting. The joint management whereby the two arms are brought together works well as there is joint accountability. Whether or not that is a good example, I take the point about the need sometimes to have a framework. It is much better if that can happen locally but facilitation through legislation does not go amiss. If the Government still maintain that there is no need for this, are they considering issuing any guidance? I would rather not have central government guidance on what should happen locally, but sometimes a little prompting is helpful.

[Lord Ahmad of Wimbledon]

My Lords, Amendment 16 seeks to ensure that all providers of probation services are required to,

“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.

As was said in Committee, the Government are clear that nothing we do to tackle reoffending will work,

“unless it is rooted in local partnerships”.—[Official Report, 5/6/2013; col. 1217.]

I have seen how that works in practice. We absolutely expect future probation providers to engage with the relevant statutory partnerships. It will be in providers’ interests to work with other partners to achieve the best results. Our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.

In tabling the amendment, the noble Lord seeks to ensure that all probation service providers are both members of, and accountable to, community safety partnerships and other crime reduction initiatives such as integrated offender management. Section 5 of the Crime and Disorder Act 1998 sets out who should be the responsible authorities for the reduction of crime, disorder and anti-social behaviour as well as for reducing reoffending. A provider of probation services will be a responsible authority for these purposes where the arrangements entered into with the Secretary of State provide for it to be a responsible authority.

As a responsible authority, current probation providers already have a number of obligations including being involved with the formulation of the local CSP strategy and plan for community safety, attending CSP meetings and sharing depersonalised information with the other four responsible authorities. Community safety partnerships are subject to overview and scrutiny by the local district council. As a responsible authority, providers of probation services already participate in this process. Nothing in this Bill will amend or change the Crime and Disorder Act. Providers will need to demonstrate how they will work in and strengthen local partnerships if they are to be successful in bidding to deliver probation services. Specifically, we are including a requirement for providers to evidence in their bids how they will relate to and incorporate integrated offender management arrangements into their proposal and contracts will reflect this. I hope my noble friend is reassured by that.

We are reviewing the current statutory partnership requirements to ensure they are appropriately assigned and discharged in the new system and we envisage that the contracts will reflect the statutory partnerships providers are required to participate in. Furthermore, the National Probation Service and contracted providers will be required to develop effective operational and strategic partnerships with each other and agree their respective roles and responsibilities in relation to statutory partnerships to minimise duplication and maximise effectiveness. Once the system is up and running we will monitor local partnership working as part of obtaining assurances of the delivery of services and we will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.

I understand the noble Lord’s concern. Indeed, he approaches these issues with great expertise and I appreciate the sentiment behind this amendment. However, I fear that some unintended consequences may arise from it. The amendment would in effect mean that every provider of probation services in an area, no matter how big or small, would have to participate in and be accountable to community safety partnerships and other crime and disorder reduction partnerships. Different areas of the country will have different partnerships, of different sizes and with different challenges. The right approach is to look at this carefully before deciding which provider, at which level, is a responsible authority. A tailored approach, rather than a blanket one, seems to me to be the right way forward.

I have outlined the existing legal responsibilities and requirements on providers of probation services and reiterated our commitment to local partnerships, together with the steps we are taking to ensure that our reforms are rooted in local partnerships, so that offenders can access the broad package of support they need to get their lives back on track. I have also outlined potential unintended consequences of the amendment. I hope, with the clarifications I have given and the assurances I have made, that the noble Lord will be minded to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, the noble Lord said that appropriate requirements are being reviewed and that the Government are reviewing which provider may be appropriate at which level. He went on to talk about monitoring local partnership working. It seems to me that all of this is under review and we should have a better idea at this stage of the Bill what the actual requirements are going to be. London Councils has raised these concerns with us. The London Probation Service accounts for 25% of the whole country. If it is unclear and worried, as it clearly is, surely it has a right to expect more than just more reviews about appropriate levels. Surely there should be more meat on the bone— to use the expression I used earlier—about what the responsibilities of the local authorities will be and what information they will receive. Having said that, I hear what the noble Lord has said and I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Ponsonby, for setting out his reasoning behind this amendment. I also thank my noble friend Lord McNally for doing a sterling job as a Whip on this amendment. Never let it be said that the noble Lord, Lord McNally, is not quick on his feet. I think he has broken all records in rushing over to the Box.

Amendment 17 would ensure that probation trusts and local authorities are not precluded from tendering for or commissioning contracts. As was said in Committee, I agree with the general intent of ensuring that existing providers, where much of the knowledge and expertise lies, should be able to compete for contracts, a point well made by the noble Lord. However, we do not believe that this amendment is necessary.

We want to see the broadest and most diverse market for the delivery of offender services in the future so we want as many organisations and entities as possible to be able to bid to deliver services. Nothing in our proposals specifically excludes public bodies, although such entities would need to be capable of bearing the financial and operational risks associated with the delivery of these services under payment by results. Delivery or commissioning by probation trusts themselves would be unlikely to meet those criteria given that we have announced that we will be dissolving trusts in their current form and creating a new national probation service.

However, I agree that we should do all we can to ensure a level playing field, as the noble Lord stated, for all those interested in delivering services. That is why our competition process is designed to allow a range of different kinds of entities, including alternative delivery vehicles and mutuals designed by individuals within the existing probation trusts, to be able to bid to deliver services. We have also increased to 21 the number of areas we want to commission services across in order to ensure that contract package areas are of a variety of sizes and values. This is to enable more medium and small organisations to join bids in order to take part in the delivery of services. I know that the Secretary of State himself is very keen to see small and medium organisations as part of this process.

A number of staff within probation trusts have already expressed an interest in being part of a mutual to bid and deliver services. On 20 May, the Government announced a package of measures to support the voluntary sector and mutuals. In particular, the Cabinet Office’s mutuals support programme is providing intensive one-on-one support to prepare the first cohort of seven fledgling probation mutuals for competition, including coaching on legal, financial and commercial issues. The contracts for this support, totalling more than £500,000, have recently been awarded.

Local authorities may also play a part in the delivery of the new services—for example, as part of a provider’s supply chain—and will also be able to commission rehabilitation providers to deliver additional services in line with their own priorities. The amendment has changed somewhat from the one tabled in Committee to ensure that probation trusts and local authorities are not precluded from also commissioning contracts. The Government remain firmly of the view that commissioning contracts on the scale proposed and on a payment by results basis will be most effectively and efficiently carried out by a national function.

We are committed to commissioning and providing services that meet local needs, and we will ensure that the commissioning process is informed by engagement at police and crime commissioner and local authority levels. Probation service local delivery units will support the gathering of intelligence on needs and priorities at a local level, including from key partners—for example, local authority needs assessments—to feed into the commissioning process.

Contracts will be responsive to changing demands and priorities at local and national levels, new legislation and the wider commissioning context. Where commissioning priorities need to be adjusted, this will be done in consultation with the relevant stakeholders.

The noble Lord, Lord Ponsonby, raised the issue of apportionment of risk. He made a very valid point and it is one on which we have also been in discussion with officials. Perhaps I may write to the noble Lord on that specific matter. It is a concern and I, too, have sought clarification on it. He was perfectly right to raise it.

That aside, with the assurance that I will write to the noble Lord on that point, and with the other reassurances that I have given him about the proactive work within government to ensure that all organisations have an opportunity to bid to deliver services in a variety of ways, I hope that he will feel able to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, I thank the noble Lord for that response. He talked about a number of probation mutuals which are being established and which will be bidding for elements of work. My understanding is that these are smaller organisations than at the probation trust level and that they will be dealing with a particular expertise which is within the existing probation trusts. My point is that the organisations that form mutuals or that bid in some way will need to be large scale. If they are to be only smaller parts of probation trusts, then that expertise may be lost to the public sector, which was the burden of my introductory speech.

Having said that, I am obliged to the noble Lord for undertaking to write to me on the question of risk and I beg leave to withdraw my amendment.