Offender Rehabilitation Bill [HL]

Lord Beecham Excerpts

Wednesday 5th June 2013 Lords Chamber

I realise that it is very unusual to propose an amendment suggesting that the Bill be withdrawn at this stage. I do not want to press any further with this, other than to ask the Minister to agree to provide answers to all these questions and an explanation of why it is necessary for the House to press ahead in such an ill informed way before we proceed. We owe it to the millions of members of the public, whom it is the duty of the Government to protect, to ensure that any Bill affecting their protection is subjected to the best possible scrutiny before it is released from this place. Therefore, if we are not to be enabled to do this, the House has a right to know why, because it will be called to account by the public. I beg to move.

[Lord Beecham]

My Lords, I strongly sympathise with the noble Lord’s observations and share his strictures on the substance of the proposals that we are to debate. I must, however, thank the Minister for arranging a meeting yesterday, and I thank the Secretary of State and the Under-Secretary of State in the House of Commons for attending that meeting. However, in the nature of things, it lasted only an hour and we were able to get through only three clauses of the Bill. That underlines the difficulties that your Lordships will face in debating adequately the complex proposals before us.

The noble Lord, Lord Ramsbotham, referred to the inadequacies of the impact analysis, which, I have to say, was exceptionally flimsy, even by the standards of this Government. A huge area of public policy, the future of the probation service, on which much of the Bill depends, is not actually included in the Bill. Amendments in my name and in the names of other noble Lords will raise that issue, but it is not in the Bill at all.

It is only two weeks since Second Reading and your Lordships’ House has been in session for only six days since then. Given the recess, it has been difficult enough for Members of the House to consider and draft amendments without the benefit of the kind of information to which the noble Lord referred. He has itemised many of the relevant questions. I, too, raised questions, as did the noble Baroness, Lady Linklater, and the noble Lord, Lord Dholakia. I do not expect the Minister to occupy his Whitsun Recess by replying personally to all these matters but the department should surely have taken steps to respond to those questions and allow the debates that will take place today and next week to be better informed. It is unfortunate that that has not been the case and I hope that the Minister will feel able to assure the noble Lord that answers will be given. It is not good enough for them merely to arise in the context of today’s Committee debate. We ought to have the answers laid in the Library in a consolidated form and available for consideration before we reach Report in some three weeks’ time. I hope that the Minister can build on the good work he did yesterday, rather than the omissions of the department, in dealing with these requests.

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

My Lords, a lot of what the noble Lord, Lord Ramsbotham, said was very familiar, because of course it was also his Second Reading speech. I make no complaint, but I say to the Opposition that they may be on this side of the Box one day. If using this kind of amendment to prevent a Committee stage proceeding were to become too much of a habit, it would be very easy to gum up government business.

I associate myself with the noble Lord’s words about Sir Patrick Nairne, because I was also a Whitehall warrior for quite a long time. I worked with Sir Patrick in the 1970s. My experience of both Whitehall and Westminster makes me less than apologetic about our approach. Governments are always faced with attacks for having no policy and being too slow, or for having too many ideas and rushing Parliament. I would rather we had too many ideas.

The truth is that successive Governments have tried to tackle the challenge of rehabilitating offenders. We have put forward our proposals for scrutiny and I am old fashioned enough to believe that that is exactly what the Committee stage of a Bill is for. I look forward to the next eight hours or so today and to the next Committee day for the House to do its proper job of scrutiny and questioning, and I will do my best to give answers.

On the specifics of the impact assessment, I agree to take another look at it and see where we can update it for the benefit of the House. I will bring that impact assessment back before the Bill completes its stages in this House. I hope that will be in time for Report. However, as noble Lords on the other Benches who went through similar exercises will know, we have to hold back certain things for commercial reasons. We are about to enter negotiations to get the best deal for the taxpayer and therefore do not wish to reveal our entire hand in advance. I will update the impact assessment as much as I can but I suggest that we now get on with the work of the day and the work of this House, which is the detailed scrutiny of the Bill.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, may I add one thing to what my noble friend Lord Ramsbotham has said, as well as supporting both the amendments? Very many of the young people who will be in custody or will have gone through this process will also have been in care with the local authorities. It is therefore even more important that special attention is given to them above the age of 18. I particularly support that aspect of the proposals.

[Lord Beecham]

My Lords, I join the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe, in supporting the amendments of the noble Baroness, Lady Linklater. She has a strong point in Amendment 2 on the need to avoid rigidity in the system, to look at particular individuals’ needs and to ensure that supervision is proportionate and flexible according to the circumstances of the case. There is some danger, under the Bill’s present formulation, that that will be rather more difficult than it should be.

I am also particularly enthusiastic about Amendment 4. It seems that continuity is critical here, particularly as the people we are looking at are themselves in a state of transition. It does not seem helpful that those who supervise and assist such people should change in the course of that transition. Of course, there has to be some cut-off point, and the age of 21 is reasonable. I hope that the Minister will look sympathetically at that. It also strikes me that it may be a more cost-effective way of dealing with offenders in that category, because you do not have the process of handing over and entering into separate contractual arrangements with a different organisation and all the rest of it when you have already got a provider with a budget and contract which should be capable of being extended if required under the circumstances of the case.

I hope that the noble Lord will undertake to have a look at this and come back on Report. It seems sensible and quite consistent with the approach that the Government seek to pursue.

[Lord McNally]

My Lords, I am grateful for the debate that my noble friend has stimulated. She is absolutely right that this group of people is the most challenging in terms of the prolific number of offences for which they are responsible. In many ways, this can be a key period in their lives and can determine whether they live a life of crime or become constructive members of society. I also take the point made by the noble Baroness, Lady Howe. For me, there is a sense of shame that so many who have been in our care end up in our criminal justice system. We must go into that more deeply and we shall try to do so, in part, through the Children and Families Bill and other legislation.

What gives me some optimism that we shall be able to make this new legislation work is that there are good examples: the Manchester scheme that the noble Lord, Lord Ramsbotham, referred to and the mentoring in Peterborough. This was raised in our discussion yesterday and I want to explore further the mentoring by those who have committed earlier misdemeanours but now play a positive role in life. I remember going to Stafford and meeting a mentor who had been heavily drug dependent, but he had cleaned himself up and was now having a really good effect on young people through the advice that he was giving them.

The noble Lord, Lord Ponsonby, expressed the dilemma at Second Reading that persistent offenders end up being given short sentences that send them into a prison environment. I fully accept the point made by the noble Baroness, Lady Linklater, that that puts them into a completely ill-suited environment in terms of rehabilitation. That is one reason why part of what we are trying to develop is to start rehabilitation in prison, so that they get used to the world of work and address various failings such as literacy or drug or alcohol dependency. One of the first things I was told when I started visiting prisons and youth offending centres was, “We just start to have some effect and then we lose them”. I repeat that the period of 12 months’ supervision is not punishment but the continuation of help.

My noble friend said that this amendment is designed to provide a power for the Secretary of State to contract the rehabilitation services when an offender volunteers for such programmes. I have already said why we think that both licence and top-up supervision should be applied to all offenders. I understand the point that often the most effective rehabilitation occurs when the offender decides that they want to change. However, the simple fact is that many offenders will not volunteer for rehabilitation programmes. Those who initially volunteer may change their mind when more challenging questions are asked of them, or when they simply become bored of what they may decide is undue hassle. Offenders who fail to comply with the programmes will simply withdraw their consent to avoid any consequences of failing to undertake the programme they initially signed up for.

In the Bill we are ensuring that all offenders have the opportunity to receive help and assistance on release from custody. We are saying to offenders, “Here is your chance to rehabilitate yourself and turn your life around, but you cannot walk away from this and expect no consequence if you do”. That is why the licence and top-up supervision is mandatory, but also flexible, so that providers can tailor the type of support and intensity that is needed for each offender.

I have taken time to explain that we think licence and supervision should be mandatory, but let me deal very quickly with the powers of the Secretary of State to contract for voluntary-based rehabilitation services. The fact is that the Secretary of State already has the power, and nothing in the Bill restricts that power, even though our intention, in the vast majority of cases, is to make licences and top-up supervision mandatory. In short, therefore, the Secretary of State does not need this power, and I ask my noble friend to withdraw her amendment.

Amendment 4, on the top-up to 21 year-olds, also takes my noble friend’s application of top-up supervision. I understand that the intention of Amendment 2 is to ensure that offenders aged under 21 on release from custody will serve a period on licence but not be subject to top-up supervision. I understand my noble friend’s argument, but I disagree with it. The Government believe that all those aged 18 when released from custody should get the same level of supervision and support. The amendment would mean that an offender sentenced to two months’ imprisonment when aged 20 would serve only half their sentence in custody and have only a month of licensed supervision. Yet, as I said at the beginning, these young offenders have some of the highest reoffending rate of any group.

Our proposals in the Bill will ensure that offenders who are 18 when released from custody get 12 months of supervision in the community. I stress again that the type and level of supervision can be tailored to the young person’s needs. I expect that providers will develop specific programmes for this age group, offering a real chance to make a difference to the needs of young offenders. The Government see this as an opportunity for real support for young offenders, not as something that they should be excluded from.

I will clarify the point that my noble friend Lord Ramsbotham made about the crossover from YOT supervision to probation supervision. The Bill makes it clear that this will be a matter of judgment at that time, and of consultation to make sure that what is done is most effective. If the most effective course is to retain the YOT supervision, that supervision will continue. It fits in with what I keep on emphasising: this is not, to take the criticism of the noble Lord, Lord Beecham, an exercise in rigidity. It is quite the opposite. It builds in the most flexible of approaches to try to tailor to the needs of the individual the kind of help and support they are going to get. However, I disagree with my noble friend, although, goodness knows, I am in awe of his experience and expertise in this area. If saying to offenders in this age group, “For the next 12 months you are going to try to mend your ways” is somehow an unfair burden on them by society, I am willing to take that risk.

I suspect that if we can put this into place, we will start having an impact on this age group. As I have said, one of the lessons that we have to learn from the experience of this age group is that without this help, they get out of our control, become repeat offenders, going into the adult criminal justice system and the prison system with disastrous results for both themselves and their society. Therefore, I do not think that this long period of 12 months’ supervision ahead of them is somehow a terrible burden on these young people. For a significant number of them, it may be the best thing that ever happens in their lives.

I hope that my noble friend will consider withdrawing her amendment. However, I will carefully read Hansard and look at our proposals for this age group. I agree with much of what noble Lords have said about offenders in this age group; if we get it right for them, there will be enormous benefits in terms of the impact on future criminal behaviour.

As I said, I am willing to look at the arguments and think about this further, but I think we have got the balance right. I hope that the noble Baroness will consider the arguments that I have deployed. In the mean time, I hope that she will be willing to withdraw the amendment.

[Lord Beecham]

Accepting for a moment, for the purposes of argument, the noble Lord’s assurance—and of course I do accept his assurance—that there is the option of transition not being automatic, who decides in the end what should happen? Does this have to be agreed between the YOT and the probation service, or does it go back to the court? Where would a decision be made if there is a disagreement between the existing provider and the future providers?

[Lord McNally]

That is one of the things that I want to think about. I hope that the two bodies concerned would make a practical decision about the needs of the individual, but as the noble Lord, Lord Beecham, said, if that was not available, who would be the judge? Would that have to go back to court? I will think about that, and if there is a gap we will fill it.

--- Later in debate ---

[Lord Beecham]

My Lords, I shall resist the temptation to reach for my copy of Roget’s Thesaurus but simply confine myself to commending my noble friend Lord Bradley on the amendment and to paying tribute to his long record of very effective concern for this issue. His point about the desirability of having some knowledge of the proposed guidance on good behaviour is a matter on which the Minister should reflect. I hope, even if a final version is not available, that at least an outline of what is intended by that definition can be provided before Report. I hope that he will accept the amendment, which seems to make a great deal of sense.

I have just one further observation. It seems important that the communication and explanation recommended in the amendment should be given at the prison gate, as it were, before the prisoner leaves, not at some point afterwards. That would obviously make sense and I hope that the Minister will take that on board as well as the question of defining what would have been meant by “good behaviour” for the purposes of communication with a group who may struggle with that concept without adequate explanation being proffered.

[Lord Ahmad of Wimbledon]

My Lords, as always, I have listened with great interest. I am for ever learning when I hear such wisdom from across the House, although, when listening to the debate on rehabilitation and good behaviour, I was reminded of my childhood. I perhaps disagree with one noble and learned Lord who suggested that we are all innocent. We were all guilty in front of mother, and “rehabilitation” was not a word that she used when putting us right.

Nevertheless, I join the noble Lord, Lord Beecham, in commending and acknowledging the terrific work of the noble Lord, Lord Bradley, in this area. I also thank the noble Lord, Lord Ramsbotham, for raising this issue, and acknowledge the incredible work of the work of the Prison Reform Trust. The noble and learned Lord, Lord Woolf, said that perhaps his worth in the Prison Reform Trust was not quite recognised because he was merely the chairman. However, his worth is well recognised in your Lordships’ House, as it is in this debate.

All noble Lords who contributed referred to the importance of communication. I firmly believe that that is important in ensuring that the people we are seeking to assist understand what is being resolved for them in their lives and what is ultimately the goal—that they become productive citizens for the benefit of them, their families and society as a whole. The noble Lord, Lord Bradley, asked whether I would acknowledge the importance of the requirements of those who have learning difficulties or problems in understanding. I do so from the outset—absolutely.

--- Later in debate ---

Moved by

[Lord Beecham]

7A: Clause 2, page 2, line 40, leave out from “services” to end of line 42 and insert “that is a public sector provider or a person commissioned by a public sector provider”

[Lord Beecham]

My Lords, this amendment seeks to amend subsection (2) of Clause 2, which, in turn, seeks to insert new Section 256AA into the Criminal Justice Act 2003. The amendment seeks to amend new subsection (8) of the new section in relation to the definition of a supervisor of persons subject to the supervision which will, when the Bill is passed, take effect for prisoners serving less than two years.

The purpose of the amendment is to be clear that the provider of the supervision should be a public sector organisation. At the moment, presumably it would normally be a probation trust or an organisation commissioned by such an organisation. It seems to me and to my noble friend important that there should be a clear public line of accountability for the provision of this service, which does not necessarily seem to be the case according to the wording of the proposed subsection as it now appears. It is a fairly basic point. Given that we are looking at a significant responsibility, some of which at the moment is not exercised at all by the probation service—that is to say, supervision of people serving less than 12 months—an important line of public accountability should be established. That in no way precludes, of course, the engagement of the third sector in relation to supervision of offenders, as long as they have been contracted by a public authority.

Of course, there are many examples of probation trusts working with voluntary organisations at the moment. I know that in my own area, Northumbria, a probation trust has very good working relationships and in Newcastle there is a successful scheme that has been commissioned in that way. There is no intention at all to ensure that all the supervision is actually carried out by the probation service but, if that is not the case, there should at least be that line of public accountability. I beg to move.

[Lord McNally]

My Lords, the noble Lord will be quick to tell me if I am wrong but, as I read it, Amendment 7A has a very clear effect. It is to ensure that all top supervision of offenders should be carried out by the public sector providers or those bodies commissioned by the public sector. I have never hidden from this House that we believe, particularly in the present economic conditions, that we will be able to find the resources to carry through our rehabilitation revolution only by employing payment by results and involving the skills and initiatives of the private and voluntary sectors.

We are breaking new ground in our approach. We are committed to providing, for the first time in decades, supervision for those released from short custodial sentences. One of our key objectives is finally to tackle the unacceptably high level of reoffending among this group. That prize is worth striving for. However, to achieve that aim we have to be able to afford this additional supervision. To do that, we need to reduce our current costs of dealing with offenders. The noble Lord, Lord Ramsbotham, does not think that we can do this. I say to him that we cannot do so by only going down old ways and old costs. Competing the majority of probation services will improve value and efficiency throughout the system, making taxpayers’ money go further. For example, competing the community payback contracts in London saw a £25 million saving over four years. We will also look at efficiencies within the public sector by consolidating back-office functions and creating one national public sector probation service. That is another real plus for the Bill. I remember the debates nearly a decade ago, and I was never happy that the probation service was a kind of junior partner to the Prison Service. One of the effects of the Bill will be to create a national probation service with real status and a real voice in these matters. We also want to encourage innovation among providers of probation services to ensure that we make a real change in reoffending rates. By paying providers in full only when they are successful at reducing reoffending we will not only make savings but will drive down reoffending rates.

We want to avoid what the last Government did. We do not want to create a sentencing regime that is overly prescriptive, complex and unaffordable. In other words, we do not want to create another custody plus sentence, the flagship policy of the 2003 Act, which ended up never being implemented. I hope the noble Lord, Lord Beecham, will be reassured that we have learnt those lessons from the past, and that in the light of my explanation he will withdraw his amendment.

[Lord Beecham]

If I do, it will not be because of the noble Lord’s explanation. However, of course I will not press this matter to a vote.

We will come later to the question of payment by results and the considerable doubts that many of us on these Benches and in other parts of your Lordships’ House have about that as an appropriate way of dealing with the sensitive area of supervision. I stress again, as my noble friend Lord Ponsonby made clear earlier, that we strongly support the drive for reducing reoffending and that we are engaged with a question of the practicalities.

I come back to the position that in our view that line of accountability at the level of the provision of service should ultimately rest with a public sector body and not simply be hived off completely, even if the work is subcontracted—and there is no particular reason why that should not be the case. I mention specifically third sector organisations because they have a particularly valuable role to play. My amendment would not exclude contracting with private sector organisations, for that matter. However, they would be contracted by the public sector body with the legitimate experience. However, as I indicated, I will not press this tonight, and I beg leave to withdraw the amendment.

Amendment 7A withdrawn.

--- Later in debate ---

Moved by

[Lord Beecham]

7B: After Clause 2, insert the following new Clause—
“Duty for all providers of probation services to attend community safety partnership meetings and co-operate with crime and disorder reduction partnerships
(1) Section 6 of the Crime and Disorder Act 1998 (formulation and implementation of strategies) is amended as follows.
(2) In subsection (1) after “responsible authorities” insert “including all future providers of probation services”.
(3) In subsection (1)(a)(i) after “disorder in the area” insert “to include attendance at local community safety partnership meetings and co-operation with crime and disorder reduction partnerships”.”

[Lord Beecham]

My Lords, it is common ground between all Members of your Lordships’ House, and reflected in some of the amendments that we have already debated, that the problems suffered by and indeed occasioned by offenders are complex and often multiple, and that in dealing with them no single agency is likely to be able to resolve all those problems or help people entirely overcome the difficult issues that they face. On the contrary, it is quite clear that in a number of areas, collaboration between various agencies will be required if we are to achieve the shared objective of reducing reoffending, from the perspective both of the advantage to society and of the individuals concerned. Therefore, looking at what is most likely to avoid reoffending, we know—and it has been rehearsed many times in your Lordships’ House—that the principal steps that can be taken to diminish reoffending relate to employment and in particular to housing, but also to issues such as health.

A number of different agencies could and should be involved in all these aspects, both in the direct provision of services and in the case of commissioning services, so that, for example, local authorities clearly have a role. I suggest that in shire county areas that is at both levels—of adult services which are county level responsibility, and housing, which is a district level responsibility. However, of course, in unitary authorities they are located within the same authority. Obviously the police have a role, but also in terms of employment one has to look at the Department for Work and Pensions. In terms of health, in the new organisation of the health service, I suggest that one has to look at two levels: the clinical commissioning groups and the national Commissioning Board, because they have responsibility over areas of mental health.

All these need to be involved, and many of them are already involved, in local arrangements, such as community safety partnerships and crime and disorder reduction partnerships. Some of them are involved in the health and well-being boards, which prepare strategic needs assessments. I would hope that the needs of offenders are reflected in those bodies. However, the purpose of this amendment is to ensure that all providers of the services which the Bill seeks to introduce, or at any rate ensure are available, come together with the other relevant agencies so that a genuine cross-sectoral partnership is dealing with these issues. Of course, that puts a responsibility on the other partners, as well as on the direct providers of probation services or supervisory services.

I hope that the noble Lord will accept that, at least on this occasion, this is meant to be a friendly amendment, designed to achieve some progress on a commonly shared objective, and I look forward to hearing his response.

[Lord McNally]

My Lords, I always assume that the noble Lord, Lord Beecham, is working in the most constructive manner. I was a little brusque with him in my previous reply. I thought that perhaps buried away in his innocent amendment was an effect that might have undermined the purpose of our Bill. However, in respect of Amendment 7B, I would not even entertain such an unworthy thought. I understand where he is coming from; let me try to explain our approach.

This amendment would provide that all future providers of probation services would be responsible authorities for the purposes of formulating and implementing crime reduction strategies. It would also mean that all responsible authorities, not just probation providers, would be obliged to attend community safety partnership meetings and co-operate with crime and disorder reduction partnerships.

The Government fully share the sentiment in this amendment but nothing that we do will work unless it is rooted in local partnerships. The Transforming Rehabilitation strategy made clear that the Government expect new providers to engage with statutory and non-statutory local strategic and delivery partnerships. These will, of course, include community safety partnerships, but also others such as integrated offender management, safeguarding boards and youth offending teams. It will be in providers’ interests to work with other partners to achieve the best results, and our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.

However, we also set out in the strategy our clear expectation that providers will need to demonstrate how they will work in and strengthen local partnerships to deliver the results that they are incentivised to achieve. As part of the formal evaluation of this, we will include a requirement that providers’ evidence how they will sustain and develop networks and partnerships. Once the system is up and running, we will monitor local partnership working as part of obtaining assurances of the delivery of services. We will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.

I have set out our commitment and the steps that we are taking to ensure that our reforms are rooted in local partnerships so that offenders can access the broad package of support that they need to get their lives back on track. Incentivising providers to focus relentlessly on reducing reoffending means that it is in their interests to work with other partners and in local partnerships. However, we must ensure that providers have the flexibility to do what works. Integration at local level works best when it is not mandated centrally.

Sections 5 and 6 of the Crime and Disorder Act 1998 already specify that where contractual arrangements so provide, providers of probation services will be responsible to authorities for the purpose of crime reduction strategies. We have no plans to change the legislation in this respect. We are doing further detailed work on the contractual requirements on providers, and will look at how we address issues such as lack of engagement with partners locally. However, as I have already touched on, it will be in the provider’s interest to work with other partners to achieve the best result under our system, and we will incentivise them to do so. We will monitor local partnership working as part of obtaining assurance of the delivery service. As I have said, we will liaise with the police and crime commissioners, local authorities and others in this task. We are doing further detailed work on the contractual requirements on providers and will look at how we address issues such as lack of engagement.

However, it will be in the provider’s interest to do this work. For this reason, although I think it is an important issue, I hope that my reply convinces the noble Lord that it is one that we are keeping in mind as we draw up the contracts. We will try to get the balance right between flexibility in operation, which we have continually emphasised, and an important emphasis on local engagement, commitment and monitoring, which the noble Lord has rightly raised in this amendment. Having given such a warm and constructive reply, I hope that he will agree to withdraw it.

--- Later in debate ---

[Lord Beecham]

Out of sheer surprise, I certainly will. I welcome the thrust of the Minister’s reply. From the way that the amendment is framed, it looks as though responsibility is intended to fall only on the provider of the supervision but, of course, a wide range of other organisations—some statutory—need to be involved. While the Minister and the department will keep an eye on these matters, it is important that other departments are also engaged, including departments at a national level, particularly the Department for Work and Pensions, the Department of Health and the Department for Communities and Local Government. Then, at local level, there are various bodies such as local authorities, clinical commissioning groups and the like.

I wonder whether a cross-governmental approach on this would be sensible, although not necessarily at this point, rather than simply leaving it to the Ministry of Justice to adumbrate the desiderata of co-operation, but ensuring that there is buy-in from other government departments. Equally, we might approach, for example, the Local Government Association—I declare an interest as an honorary vice-president thereof—to encourage local authorities to recognise the importance of their role in this new programme.

There is nothing between us on this. I hope that spirit of joint approach, which has been evident in the Chamber tonight, will be communicated to those who will be taking the important decisions at the local and, indeed, the national level. I beg leave to withdraw the amendment.

Amendment 7B withdrawn.

--- Later in debate ---

Moved by

[Lord Beecham]

8: Schedule 1, page 20, line 6, leave out paragraph 1

[Lord Beecham]

My Lords, I expect this will be another brief debate. There are two matters to which I want to draw attention in this amendment, and they relate to Schedule 1, which seeks to introduce a new provision, again into the Criminal Justice Act 2003. One relates to the requirements that the Secretary of State may specify must be adhered to by an offender on supervision. That is in relation to the,

“requirement to reside permanently at an address approved by the supervisor and to obtain the prior permission of the supervisor for any stay of one or more nights at a different address”.

While one can well see the importance of residence, particularly in cases where it is undesirable for an offender to reside in a particular location—for example, if there has been an incident of domestic violence and that is the subject of his or her conviction. Equally, however, there are very vulnerable people in the system. If they were, for example, to return to the family home—particularly in the case of a young person, but not necessarily in only those cases—where there are already problems, one can envisage circumstances in which they may be unable to continue to reside there and it may be almost an emergency situation.

I hope it would be clear that, in those circumstances, as long as the offender takes the first opportunity to notify that he or she has not been able to return to that place of residence, that would not lead to a breach. I assume that would be the case, but some words on the record from the noble Lord would perhaps be helpful.

My other question is a simple one in relation to new Clause 256AB(4), which relates to the fact that the Secretary of State may, by order, specify additional requirements, or “remove or amend” the requirements that have already been set out in new subsection (1). The order will presumably have to take the form of something laid before the House. The question is whether that would be an order subject to negative or affirmative resolution. It is as simple as that. I beg to move.

[The Deputy Speaker (Lord Haskel)]

I have to inform your Lordships that if this amendment is agreed, I cannot call Amendments 9 to 12 because of pre-emption.

[Lord McNally]

My Lords, I hope I am answering the amendment that the noble Lord has moved, because I am just wondering what Amendment 8 would actually do. It would remove paragraph 1 of Schedule 1 to the Bill, which amends the 2003 Act and sets out the conditions under which the Secretary of State may top up supervision. I have already said that top-up supervision is a useful device to ensure that there is a reasonable period of supervision to enable a change to be made to the offending behaviour. Therefore, the amendment has the unusual and perhaps unintended effect of not removing the provision for top-up supervision that is contained in Clause 2.

[Lord Beecham]

It is purely a probing amendment. There is no intention to remove the provision.

[Lord McNally]

Instead, it would simply remove any statutory controls on the conditions that can be imposed during the supervision period. When sentencing offenders to custody, courts will be unaware of the limits to the conditions that may be imposed by the Secretary of State. This could affect their sentencing behaviour if they decide that they need to compensate for the risk of punitive supervision conditions being imposed. It also, strangely, retains the detail of drug testing and drug appointments under the top-up supervision, which are in paragraph 2 of the schedule, along with the process for dealing with the breach of supervision. However, it removes the reference to them as conditions of the supervision.

The noble Lord said that this was a probing amendment. I will look again and reflect on what exactly he was probing. If I need to clarify this, I will. On his question about a resident who for unforeseen circumstances was in breach, again, I hope that what we are doing is not setting up circumstances for individuals to fail; these are meant to be supportive, sensible, intelligent ways of dealing with individuals whom we know—as has been emphasised—often have very complex problems. The noble Lord has probed, I have responded, and if the matter requires further clarification, I will certainly provide it.

[Lord Beecham]

I am grateful for the second—unscripted—part of the noble Lord’s speech. In the circumstances, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, I join the noble and learned Lord and the noble Baroness, Lady Howe, in supporting the amendments spoken to by the noble Lord, Lord Marks, which would help considerably. The noble Baroness’s amendment would remove the capacity to order a person in breach to be committed to prison. She said that there was no provision in the Bill for this measure to be used as a last resort. That is the substance of my amendments in the next group. It may be convenient for me to speak to those amendments now as I am advised that that is possible. It makes sense to do so, as my Amendments 15 and 18 would qualify the provision in new Section 256AC(4)(a) within Clause 3 by providing that a sentence for breach not exceeding 14 days is to be treated as a last resort. I hope that meets the point raised by the noble Baroness. Concerns were expressed about this provision in the consultation document, which the Government acknowledged in their response. However, as yet, their response has not been reflected in the Bill. In my submission, it would make sense to add that qualification, so that, in addition to the provisions in the amendments spoken to by the noble Lord, Lord Marks, the right of the court to impose a custodial sentence of up to 14 days would be preserved but it would be stated explicitly in the Bill that it is to be used only as a last resort. That is the sort of declaratory statement to which the noble Lord has referred in earlier debates.

Is the Minister in a position to indicate the anticipated number as regards the recall provision? I could not find it in the impact assessment. He may not be in a position to do that. However, the noble Baroness rightly referred to the very large increase in this regard—the 55-fold increase—in the past 20 years, most of which, as she rightly says, occurred over the past 14 years. Many of the custodial sentences for breach are imposed on young offenders. Indeed, the Prison Reform Trust has reported substantially on that problem.

I suspect that there is no great distance between the Minister’s position and that set out in the amendments of the noble Lord, Lord Marks, and in my Amendments 15 and 18. I would welcome the Minister indicating tonight or on Report that those measures will be included in the Bill, with the appropriate wording. The noble Baroness rightly referred to concerns about there being an increased readiness to impose custodial sentences for breach and the cost of this in material terms and, potentially, for offenders and the rehabilitative process. This is not a clear-cut issue and there are clearly arguments on both sides but I have heard concerns expressed by a senior member of the Magistrates’ Association as well as by the noble Baroness and other organisations. Accepting these amendments would go a long way to relieve those concerns while still leaving the court with the ultimate power to impose a custodial sanction as a last resort.

[Lord McNally]

I thank noble Lords who have taken part in this debate. Perhaps I could cover numbers and costs in the revised impact assessment that I will bring back to the House.

I say to the noble Lord, Lord Beecham, and the noble Baroness, Lady Howe, that I certainly do not want to see any benefits gained from a successful rehabilitation programme being dribbled away in the costs incurred through dealing with breach. That would be very self-defeating indeed and we must look carefully at that. However, although this is a wonderful Chamber in which to discuss these problems, I sometimes think that we try too hard to be understanding on these issues. In trying to understand all these terribly complex problems with which these people are faced, we do not face up to the fact that they have a choice. As I have said in previous debates, I remember from my childhood young people who experienced in their upbringing many of the problems we talk about in this House but who nevertheless grew up to be honest, decent, honourable members of society. It is a choice.

In our efforts to understand, I sometimes think that we leave some of these offenders with the belief that the gun is never loaded and that they will never have to face the consequences. As the noble Lord, Lord Ponsonby, has said in earlier debates, some offenders who have been given every chance, shown every understanding and been offered every opportunity still appear before the courts and the magistrates have no alternative. I am as willing to be as woolly a liberal as the next man, but we must also send a very clear message that as a society we do not intend to tolerate anti-social and criminal behaviour without a firm response. If we do not do that, some of the characters we are trying to deal with will never apply themselves to the offers we are making them that we hope will help them put their lives together again.

--- Later in debate ---

Tabled by

[Lord Beecham]

15: Clause 3, page 3, line 39, at beginning insert “subject to subsection (7A),”

[Lord Beecham]

My Lords, I have to reassure the Committee that my bedtime reading does not consist of “50 Shades of McNally”.

I regret the dismissal of the purpose of my amendment, even if the wording might be improved, because it is important, as the noble and learned Lord, Lord Woolf, said in another context and as I reminded your Lordships, that a declaratory phrase be used to clearly indicate that the court should not be quick to impose even a 14-day sentence. It should be implemented only after full consideration of such a measure. The experience of committal for breach for young offenders, to which I have alluded, lends some force to the suggestion that a clear message be sent that such a provision ought not to be lightly adopted. Not all benches would do that in any case, and obviously the court on which my noble friend Lord Ponsonby sits is not cavalier in its approach, and I doubt whether many courts would be. Nevertheless, a declaration of the sort suggested would have been helpful. However, in the circumstances, I shall not move the amendment.

Amendment 15 not moved.

--- Later in debate ---

Moved by

[Lord Beecham]

18A*: Schedule 2, page 23, line 27, at end insert—
“(1A) An offender subject to a supervision order under section 199 (unpaid work requirement) shall not be required to work unpaid for a private sector employer.”

[Lord Beecham]

My Lords, the amendment relates to new Schedule 19A, which deals with supervision default orders and incorporates new provisions in the Criminal Justice Act 2003. The amendment addresses the issue of the unpaid work requirement embodied in new sub-paragraph (2)(a).

It is a straightforward amendment that might not be necessary. To be frank, I do not know the Government’s current thinking or, for that matter, the present state of the law. However, if unpaid work is to be required it should not be to the profit of a private sector organisation that is in the business of, perfectly legitimately, generating profits. If unpaid work is to be done, it should be for a public body or a social purpose. Obviously it is important that people have the opportunity to develop skills. It is also good that the discipline of work should apply. That is very much part of the rehabilitation process, which is not always easy to achieve. Unpaid work might be very helpful in that respect. However, I repeat that it would be wrong if that work were to the financial advantage of a profit-making organisation. One could well envisage placements with voluntary organisations, local authorities or whatever, which would be perfectly reasonable and satisfactory.

I hope the Minister can assure us about that. Otherwise, we might have to return to this issue on Report because it is an important point. We hear too much of what can only be described as bogus apprenticeships, shelf-stacking and the rest of it under the Work Programme. One does not want to see that kind of work, particularly if it is unpaid, being imported into this agenda. It is desirable that the range of activities that might be encompassed within such a programme benefits the offender and perhaps society. It would be wrong if financial benefit was thereby given to a private business. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord and I can from the outset assure him, as is clear in all these matters, that the objective is not for any operator to make profit from such work. My understanding of the purpose of the amendment is that it would prevent any offender who is carrying out unpaid work as a sanction for breach of a supervision requirement from doing that unpaid work for any private sector organisation. I would make a number of points in response to the noble Lord.

First, as noble Lords will know, we intend to open up the delivery of unpaid work, along with other services for offenders in the community, to a wide variety of organisations. This will include the private sector. However, the model for private sector organisations’ delivery of unpaid work would, I should make absolutely clear, not involve the offender working directly for them. The private provider would be responsible for organising the community work and supervising the offender’s progress. Unpaid work is intended to be of benefit to local communities. The private provider would make arrangements with a local authority, community group or charity for the actual work to be carried out. The private provider may also subcontract another organisation to deliver the unpaid work. This may be particularly important for women offenders or offenders with particular needs, such as learning disability. In these cases a smaller organisation within the community with the relevant expertise is much better placed to arrange the unpaid work.

However, the amendment might prevent private providers even from making arrangements with other bodies to deliver unpaid work. Consider the case of a private provider with responsibility for supervising offenders carrying out unpaid work and that wants to make arrangements for placements with a local charity or community group. The amendment could prevent the private provider from doing so, although I am sure that this was not the intention of the noble Lord, Lord Beecham, in tabling the amendment.

Unpaid work can fulfil a number of purposes. As part of a community order or suspended sentence it provides a credible punishment, but it can also help offenders to learn new skills or disciplines of work. The noble Lord, Lord Beecham, raised this important issue. Too often offenders are looked at in a particular way, but some lack the basic ability to turn up at a given time to serve a particular number of hours. We need to help develop these basic skills and mindsets.

Unpaid work is also reparative, allowing offenders to pay back the harm done by their crimes to the wider community. This is equally true of unpaid work carried out under supervision default orders. It is a sanction for the breach, but this is not to say that it cannot also support the offender’s rehabilitation, or allow them to put something back into the community they have harmed.

My point here is that unpaid work needs to be meaningful, whether it is carried out as part of a community order or as a sanction for the breach of supervision requirements. Even if it is imposed as a sanction for a breach, the work needs to be of sufficient quality. This remains true whether the provider is a private sector organisation, a charity or the public sector. For this reason I do not believe this amendment’s singling out of private sector organisations to be the right approach. The key issue is ensuring that whoever delivers unpaid work does so to the appropriate standard. We will ensure that our new arrangements deliver this. For these reasons I hope the noble Lord will see fit to withdraw his amendment.

[Lord Beecham]

My Lords, I cannot say that I am terribly happy with the noble Lord’s response. It seems to me that there is almost a moral issue here about what is in effect the exploitation of unpaid labour. There is already some concern about the degree to which this now forms part of the process of imprisonment. Bringing in unpaid work has a potential impact on competitor organisations that do not have the advantage of cheap labour, or as in this case unpaid labour. If private sector employers are to be engaged in the process of assisting rehabilitation by providing work—and there is no reason why they should not be—it is incumbent on them to pay for that labour. There is no reason why they should not pay at least the minimum wage. It seems wrong that they should benefit from this process.

I regret the Minister’s response. I invite him to think again about this, as it is not satisfactory. Otherwise we might have to return to it on Report, because it strikes me as a wholly inappropriate response. There are many opportunities outside unpaid work in the private sector that would encourage the rehabilitation that we all want to see. The Government should rethink their position on this issue.

[Lord Ahmad of Wimbledon]

My Lords, perhaps I may clarify this. The noble Lord’s point about paying someone who is caught up in one of these arrangements or rehabilitation schemes is a slightly separate one. I emphasise that the amendment as tabled would prevent the private sector from providing any kind of service as part of the rehabilitation process. I have made the point, which I wish to underline, that the private sector organisation is there not to make any profit. As I have said, the person actually performing this particular arrangement within the community would be doing so as part of their rehabilitation. The issue about whether that person should be paid or unpaid is a slightly separate matter.

As the noble Lord has said, we will come back to this. For the benefit of the Committee I would like to clarify that many offenders are currently subject to unpaid work. Currently, around 60,000 offenders have successfully completed community payback sentences, for example. That is 7 million hours of work on projects that directly benefit local communities. To be clear, the intention is that any unpaid work is of benefit to the community and to the individual as part of their rehabilitation process. The underlying objective is not for any provider, whether private or otherwise, to make a profit from that arrangement.

[Lord Beecham]

I am grateful for the noble Lord’s most recent remarks, although the points that he made did not really come across when he previously addressed the matter. There is perhaps not the great difference between us that I had perceived. However, it would be better, if the noble Lord agrees, to go back and look at how the Bill might be worded to deal with this situation, which I now apprehend does not really divide us.

I am well aware of community payback schemes, and I see them in my own ward. They are very valuable and seem to me to be the right approach, although not necessarily in exactly the same form. I sense that really we agree about the notion of people carrying out work for a profit-making organisation on a profit-making project, in which case perhaps the noble Lord would look again at the amendment and see whether we can come up with something on which we can agree. Having said that, I beg leave to withdraw the amendment.

Amendment 18A withdrawn.