Offender Rehabilitation Bill [HL]
Lord Beecham Excerpts(11 years, 5 months ago)
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Lord Beecham
Lord Beecham
My Lords, this amendment is the identical twin of Amendment 7A, which I moved last week in relation to Clause 2. As I said then, the effect would be to require the necessary supervision to be carried out either by a directly employed public service provider or by a person commissioned by such a public sector provider. I do not think it is necessary to rehearse the arguments again. I suppose that it is unlikely that the ministerial sinner will be in a repentant mood this afternoon, but I live in hope and I beg to move.
Lord McNally
My Lords, I am like St Augustine; I want to give up sin, but not yet. I will deal briefly with Amendment 24C. It would mean that the responsible officer for the supervision of offenders subject to community orders and suspended sentence orders would have to be a public sector probation provider. As the noble Lord, Lord Beecham, said, this is essentially the same amendment applied to community orders as the noble Lord tabled on the first day of Committee for supervision of custodial sentences. As I said then, the Government are committed to providing new supervision for those released from short custodial sentences. To achieve this aim, we, as a responsible Government, have to be able to afford this additional supervision. To do that, we need to reduce the current costs of dealing with offenders.
We also want to encourage innovation among providers of probation services dealing with this group of offenders serving community sentences and suspended sentences. It is important to ensure that we continue to improve the reoffending rates of this group of offenders, as well as of those serving custodial terms. Paying providers in full only where they are successful at reducing reoffending will not only make savings; it will drive down our reoffending rates. I hope that the noble Lord, Lord Beecham, will withdraw his amendment now that I have clarified what the Government’s intentions are.
Lord Beecham
My Lords, I thank the noble Lord for the repetition of the stance that he took the other night. I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I commend again the noble and learned Lord for the tenacity with which he has pursued this important area of penal policy. I am entirely in agreement with the thrust of his amendments and I am sure that they will commend themselves to other Members of your Lordships’ House. However, I have one difficulty with his amendment.
Lord Woolf
I hope I will be forgiven if I intervene to say that, with great perception, the noble Lord, Lord Beecham, seeks in Amendment 27A to alter the proposal in Amendment 27. I should make it clear that I support Amendment 27A in preference to my original proposal.
Lord Beecham
I am obliged for the noble and learned Lord’s intervention but perhaps I should decode what is happening for the benefit of those who do not understand—it took me some time—the effect of the amendment as originally drafted.
As originally drawn, the amendment would have removed from Clause 13(7) reference to,
“activities whose purpose is reparative”,
and substituted “restorative justice activities”.
The two things are not the same. Reparative justice will involve doing work, for example, of the kind that I came across when involved in a justice reinvestment project in the north-east. In fact, there were two significant projects: one led to the effective reconstruction of Albert Park in Middlesbrough and the other at Saltwell Park in Gateshead, both Victorian parks which had become very run down. Offenders were brought in to work on these and benefited from being taught skills, which it is to be hoped will be useful later. They made a visible contribution to the communities which they had damaged by their offences. It was a very good scheme.
Taking that out would exclude work of that kind. As the noble and learned Lord said, Amendment 27A reinstates that in addition to restorative justice so that the complete range of options would remain available. I hope that the Minister will accept the noble and learned Lord’s amendment, as amended by my restoration of the paragraph in the original Bill. It would be extremely disappointing, given that the Government are supportive of the principle of restorative justice, if statutory recognition was not incorporated in the Bill at this time and the opportunity not taken in its passage to lend weight to the growing support up and down the country for the concept in our system.
Baroness Hamwee
Not having come with a long speech, I want to register my support and that of my noble friends on these Benches for these amendments and, as the noble Lord, Lord Beecham said, the growing support for the concept of restorative justice. The more I hear about that, the more it seems a very important part of rehabilitation. It has many aspects and one of those fits neatly within the thrust of this Bill and in the new Section 200A. Among the things it can achieve is redirecting offenders who can be described, as many noble Lords have done at previous stages, as having chaotic lives. Being able to put the chaos of one’s life into the perspective that this kind of activity can help achieve is an important objective of rehabilitation.
Lord Beecham
My Lords, my intention is purely to probe for information. Clause 14 seeks to amend Section 202 of the Criminal Justice Act 2003 which, as the Explanatory Notes make clear, is about programme requirements for community orders and suspended sentence orders. As drafted, the clause removes from the Act the provision that an offender can only participate in accredited programmes in places approved by the local probation board or local provider of probation services. My purpose here is to obtain from the Minister an elucidation of what the implications of the amendment to Section 202 of the 2003 Act would actually be. What sort of programmes will be encompassed within the new arrangements? Will they be accredited and who will the providers be? It is as simple as that. If the noble Lord is not able to deal with those questions today I would quite understand, because the clause is not particularly revealing of its purpose. I would be happy to receive a letter which could be placed in the Library, if that would be of assistance.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord, Lord Beecham, for that clarification. His reasoning may not have been clear when he notified his intention to oppose the Question that the clause stand part, but it was in his explanation. It may be helpful to reiterate what Clause 14 intends to do. Currently an accredited programme can take place only in premises that have been approved by a probation trust or other provider of probation services. There is therefore a slightly redundant step built into the process for delivering accredited programmes, whereby trusts currently have to set up premises for programmes and then approve those premises themselves before courts can require offenders to attend. Clause 14 removes this requirement. Although probation providers will still want to satisfy themselves that a programme’s premises are suitable for those attending, as a result of the amendment there will no longer be a formal requirement in law for them to ratify or sign that off internally before courts can require offenders to attend.
Parliament has already approved a change in the law that means that the responsible officer, who is the person responsible for delivering the requirement, now chooses the accredited programme that the offender must follow. This was previously in the gift of the court. This change was made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and commenced in December last year. As a consequence, the court no longer specifies where the offender must go to participate in the programme but simply imposes a programme requirement and sets the number of days on which the offender must take part.
The detail of the requirement is now in the hands of the provider, who is best placed to know which programme is the most likely to promote rehabilitation. This also means that where it emerges that a different programme would work better—for example, the offender starts on a cognitive programme but it becomes clear that a domestic violence programme would be better—the responsible officer can switch the programme without taking the order back to court. The amendment in Clause 14 merely furthers the principle of operational discretion for providers by removing the largely redundant requirement for formal approval of a place as suitable for offenders subject to a programme requirement.
In closing, I reassure noble Lords that the Government see a continued place for accredited programmes under our new framework for delivering services for offenders. Accredited programmes are evidence-based and developed from the academic literature on what works. Where interventions have a substantial degree of evidence for their effectiveness, it is important that we build on that success. Those advising the courts through pre-sentence reports will continue to be able to recommend a programme requirement where a particular intervention is available locally, and where probation professionals believe that it is the right way of dealing with the causes of an individual’s offending. Based on that clarification, I urge that Clause 14 should stand part of the Bill.
Lord Beecham
I am very grateful to the Minister for his clarification. It occurs to me to ask whether it would be envisaged that a provider of services in respect of the premises to which the noble referred could require, for example, repair work to be carried out for the benefit of the provider. That potentially would create a conflict of interest. I do not ask for an off-the-cuff response, but I would be grateful if the Minister would look at it.
Baroness Linklater of Butterstone
My Lords, I, too, cannot remain silent. I am so glad that we are privileged to have the noble Baroness, Lady Corston, to add her voice to this debate. The crucial thing is that we have not managed to listen hard enough before. There is no question that women are different from men. They are not just differently shaped; they have particular needs and they are absolutely specific. We have known this for years. It is possibly boring but quite graphic to look at just a few of the facts and figures. Women serve very short sentences on the whole, with 58% serving six months or less and many only four months, or a matter of weeks. The sentences are for non-violent offences; we do not need to be protected from these women. Some 81% are for shoplifting, and we know that most shoplifting is for food for their children or for drugs. About 60% of the women, in fact, are drug users.
The final thing, which the noble Baroness, Lady Corston, also mentioned, is that the collateral damage of the imprisonment of women is absolutely unquantifiable. If more than 17,000 children a year experience and suffer separation from their mothers, that damage does not really take a lot of imagination to assess. Some terribly graphic reports have been published. For many children, to be separated in this way from their parents is like a bereavement: in their eyes, their mothers have died. This is a terrible thing to have to experience, but this is what we are doing to this primarily non-violent, very vulnerable, group of people from whom we do not need to be protected.
The centres, which we have models for, do exist and it would not be difficult for the Government to develop them along those lines. Several years ago now, when I chaired the Rethinking Crime and Punishment initiative, we funded the Fawcett Society, which issued an important report, before even the noble Baroness, Lady Corston, saying that we should make this specialist provision. We now have one or two important Together Women groups, and a total in this country of about 55 groups altogether, which is not very many. We have the 218 service in Glasgow and the Willow partnership, which we are very proud of, but they are a drop in the ocean compared with the needs of these women. I have been to a women’s centre recently and not only were the women telling me how much their lives were being changed but there were people at the centre who had been users and were now coming back to support other people who were going through the same terrible experience.
The facts and the figures, as well as this kind of affective argument, seem irresistible. I hope that when this amendment talks about the particular needs of women that the Government will have ears to hear and will take this forward immediately.
Lord Beecham
My Lords, my noble friend Lady Corston, to whom tribute has been paid again today—as it is regularly, and rightly, when these matters come up—has spoken with her customary passion about the problem which her report so significantly addressed. The implementation of her report has, alas, as yet not gone far enough by any means. The Committee will, I am sure, agree completely with the thrust of her powerful argument this evening. I certainly support the amendment moved by the noble and learned Lord, to which other noble Lords have spoken.
It should not be necessary, but it still clearly is, to remind your Lordships’ House, and indeed others, of the impact of the present system on women offenders, particularly those who end up in custody. There is a shockingly high rate of suicide and self-harm for those in custody; it is much more significant than it is among male offenders. We are in essence discussing those who perhaps will be in custody for a short time, but even short-term prisoners will be subject to the temptation of self-harm, and that will apply, particularly again, to women. It is important that we look at this issue for a discrete group and take the sort of measures that deal properly with their problems. Although we are concerned today with the provisions of this Bill, that will need to be at various levels of the justice system. I hope we will have a sympathetic and practical response from the noble Lord when he replies.
I take this opportunity to refer again to resettlement prisons and women, because there is an issue here that that was mentioned on the last occasion in Committee and needs stressing: the proposal, which is welcome in principle, for resettlement prisons for those in custody who will be returned to the community to be nearer the place to which they will return. I pointed out that there are only 13 women’s prisons in this country and that there might well be a problem with housing women in a women’s institution close to where they live. It is a significant issue and a concern to organisations involved with this issue. It would be wrong to house women in an essentially male establishment simply because that happens to be nearer and there is no women’s institution in the appropriate geographical area. In fairness, in replying, the Minister did say:
“it is very important that we make the best use of the existing provision for women offenders in the prison estate, both taking account of its size and the geographical spread. We will be consulting with both providers and stakeholders to design the most suitable resettlement arrangements”.—[Official Report, 5/6/13; col. 1270.]
It is only a week since the noble Lord addressed the issue, and we are not expecting a result now, but an indication of the timescale for the consultation and who will be consulted would be welcome and would help to allay concerns about this issue. I hope we can get a sympathetic response.
Lord Beecham
“Veterans’ courts pilot
(1) Veterans’ courts shall be established for the purpose of assisting the rehabilitation of ex-service personnel convicted of offences for which non-custodial sentences could be imposed by the trial court.
(2) Subject to subsection (3) below, before instituting the provision of veterans’ courts, the Secretary of State shall prescribe by statutory instrument a scheme for such a system, which shall be laid before and approved by resolution of each House of Parliament.
(3) Before such system may come into existence, the Secretary of State shall undertake a pilot scheme lasting three years in duration, which shall be independently evaluated to include consultation with magistrates, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.”
Lord Beecham
My Lords, this amendment reflects the suggestion I made at Second Reading that the UK should follow the precedent set by the United States and establish veterans’ courts to supplement the trial courts when ex-service men and women plead guilty to or are convicted of crimes for which non-custodial sentences could be imposed, to assist the rehabilitation of those ex-service personnel. Consistent with earlier amendments moved in relation to payment by results and probation, it calls for such a scheme to be piloted before being eventually embodied in the system on the basis of a resolution to be approved by both Houses of Parliament.
There were two sources of inspiration for this amendment. The first was a report published in 2011 by the North East Regional Joint Health Scrutiny Committee, led by officers of Newcastle City Council, looking at the mental health needs of the ex-service community. The second and in many ways more relevant source was a recent seminar on veterans’ treatment courts organised by Justice for Vets and the Community Covenant—two voluntary sector organisations—and the city council. That took place in Newcastle about three weeks ago.
Estimates of the numbers of UK former service men and women vary. The Department of Health says that there are around 5 million in England while research by King’s College for the Department of Health and MoD in 2010 estimated only 3.8 million, with about 20,000 men and women leaving the forces each year—a figure likely to grow now that the size of the Armed Forces is being reduced. Around 2,000 service men and women a year are discharged on health grounds, with the main issues being adjustment disorders, depression and alcohol abuse. They have a significantly higher rate of post-traumatic stress syndromes than the general population.
Evidence collected by a community veteran mental health project in the north-east suggests that most mental health problems occur after discharge. There are varying estimates, too, of the numbers in the criminal justice and penal systems. NOMS figures are at the lower end of the range, but even if they are right, between 3% and 5% of the national prison population at any one time may be veterans, and many more veterans will have been before the courts and received non-custodial community sentences, probation or suspended sentences, giving a total of around 20,000. The incidence of mental health disorders among the 16-to-44 age group of veterans, their families and carers—the so-called ex-service community—is threefold that for the UK population, and combat stress referrals have risen by two-thirds in the past few years. Early service leavers who are young are particularly vulnerable to emotional and mental health problems and are up to three times more likely to commit suicide than the general population.
The seminar to which I referred was addressed by a former state prosecutor from Little Rock, Arkansas, who has also served in senior positions in the state’s correctional service. He describes himself as “not a bleeding-heart liberal”. With that experience, one might well accept that. Nevertheless, he enthusiastically espouses and promotes the concept of veterans’ courts. The presentation included a video by a senior trial judge who also presides over the veterans’ court in Little Rock.
The US has some 20 million veterans, around five times the number in the UK, and in the last five years every state has established a veterans’ court. The offender can be referred from the trial court and is required to attend monthly so that progress can be assessed. A veteran mentor is appointed and systematic efforts made to help the offender deal with the range of problems with which he or she may have failed to cope. Substance abuse, mental health issues, lack of housing, skills or a job, family breakdown and other problems are addressed by development agencies. Failure to co-operate on the part of the offender leads to recall by the trial court and the possible imposition of a custodial sentence.
The system has proved remarkably successful. The court in Buffalo, New York, which I think was the first to be established, has a 100% success rate in avoiding reoffending. In Minnesota, reoffending rates fell very sharply for 83% of those participating. The potential savings were found to be considerable. In the analogous system of US drug courts around $5,700 was saved per participant. Even Texas, a state not known as a stronghold of bleeding-heart liberals, is looking across the board in its justice system for more cost-effective approaches than imprisonment. When considering the position of men and women who have served in the Armed Forces, it is surely time for us to extend the reach of the military covenant by piloting veterans’ courts here.
I suggest beginning with the north-east. The region is the largest contributor of recruits to the armed services, and veterans comprise around 5% of its prison population of 10,500 against an ONS estimate—which may be on the low side—of 3% nationally. The 2011 scrutiny report produced a series of recommendations covering services for veterans, especially in the mental health arena, which play such a significant part in offending and reoffending. This is influencing the necessary development of a more co-ordinated approach between the relevant agencies. The potential clearly exists to build on this experience so that the MoD, NHS bodies—including health and well-being boards, clinical commissioning groups, the national Commissioning Board and trusts—councils with their responsibilities for housing and social care and the Department for Work and Pensions can, we hope, help to prevent ex-service men and women from offending in the first place. Together with the probation service and the voluntary sector, these bodies will help to prevent reoffending should they fall foul of the law.
Having discussed the problems in terms of policies and statistics, I should like to illustrate their nature by recounting the story of one individual who was helped by probation and About Turn. About Turn is a charitable organisation in the north-east which is headed by a former serviceman and supports veterans.
Mr A comes from a service background with a father who served for more than 20 years in the Army. Now middle-aged, Mr A served for nine years as a young man before leaving the forces at the request of his wife. Unfortunately they divorced and he began to suffer alcohol problems. He joined the TA and a few years ago was employed as a training team instructor but lost the job after a serious accident caused by drinking. Depression and increased drinking exacerbated the effects of medication to treat the ongoing consequences of his accident. He was arrested for a serious offence of violence and was himself severely injured. Thanks to the probation service he was put in touch with this veterans’ charity following a community rehabilitation order and a suspended prison sentence. Under their auspices, with mentoring and support, he has obtained permanent accommodation and recognised qualifications, reduced his alcohol consumption, drug misuse and self-harm, improved his physical health, increased contact with his children and ex-wife and has avoided reoffending. He has engaged in 969 hours of positive structured activities organised by the charity. In a moving letter he says:
“At present I’m on a Veterans’ Mental Health course and would love to get involved with the next one. I have attended meetings on Civic level supported charity events and am at present laying plans for charity events. All of this has played an important part of me not reoffending, self isolating and drinking and it has also given me reason to look to the future”.
He concludes:
“It is a crying shame that I had to get into trouble to achieve all of this”.
It is also a crying shame that men and women who have served their country in difficult and often dangerous circumstances should fall into a similar state as Mr A, at such great cost to themselves and to society.
By systematically incorporating approaches such as those Mr A has successfully undergone into our criminal justice system, we can do much to reduce the likelihood of such damage, and the veterans’ court concept offers a real prospect of achieving that goal. The Minister expressed sympathy with the idea when I floated it on Second Reading, and Mr Damian Green, the Minister of State for Criminal Justice in the Commons, has agreed to meet my honourable friend Dave Anderson MP and others—I hope to be one of them—in the near future. I hope that the noble Lord’s sympathetic response—I know that he wishes to see this carried forward—will be reflected in a positive response tonight. I hope that we can look forward initially to the establishment of a pilot scheme and subsequently to rolling it out in the interests of society and indeed of the ex-service men and women. Those who serve our country under arms deserve no less. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank all noble Lords who have taken part in the debate. I particularly thank the noble Lord, Lord Beecham, for tabling this amendment. I listened carefully to the very poignant story that he told of Mr A’s experiences and how we can build upon that. I also thank the noble Lord, Lord Ramsbotham, who is extremely well placed and well qualified to speak with authority on this subject, with his background in the Armed Forces, as a former Chief Inspector of Prisons and as president of the Veterans in Prison Association.
As my noble friend Lord McNally said at Second Reading, we share the concerns that have been expressed by all noble Lords in this debate and by the House as a whole—indeed, by Parliament as a whole—that ex-service personnel are ending up in the criminal justice system and, even worse, at times ending up in prison.
However, we should not make our genuine concern, which we have heard today, about our ex-service personnel appear unduly alarmist about service in our Armed Forces. To keep this in perspective, there is some evidence that points to the fact that having served in the Armed Forces is a preventative factor in offending—that is, those who serve in the Armed Forces are less likely to offend than the general population. However, many of those ex-service personnel who offend—I fully acknowledge this, and I am sure that this sentiment resonates with everyone in your Lordships’ House—have served their country, and we owe it to them to ensure that we are doing all that we can to support them.
I do not want to go into the specific wording of the amendment because I acknowledge, and I am sure that this was the intention of both noble Lords, that it was designed to highlight this issue so that we could discuss it further. The amendment raises some fundamental and important questions about the different approaches that could be taken. For example, should we be looking at a body designed to divert ex-service personnel before they get to the criminal courts? Should we be considering whether there is a case for ensuring that courts have greater knowledge and awareness in dealing with this group of offenders? Or should we be considering an oversight role, looking at the most effective ways to rehabilitate ex-service personnel? These are questions that we will look at in conjunction with the judiciary, my colleagues in the Ministry of Defence and other government departments.
This is not to suggest that there is nothing going on in regard to veterans. It is true that some ex-service personnel will struggle to adjust to civilian life, but the Armed Forces do much more than other employers in retraining and reskilling staff who are leaving their employ. We are doing more to identify the particular needs of those offenders who end up in prison, including issues arising from their previous service. All prisons should now have a “veteran in custody support officer” to help with and co-ordinate the assessment and support of ex-service personnel offenders.
I should like to take a moment here, and I am sure that noble Lords across the Chamber will want to join me, to praise the excellent work that many voluntary sector organisations do both in prisons and in the community with offenders, notably the Royal British Legion and SSAFA, the Soldiers’, Sailors’ and Airmen’s Families Association.
Important work is therefore going on, and we will be looking at how that may be best developed. I should say that, as part of our plans to improve the rehabilitation of offenders, we will expect providers of probation services to provide flexible and tailored services to offenders, including addressing the particular needs of ex-service personnel. During meetings that we have had around the Bill with the Lord Chancellor, the Secretary of State and indeed with all Peers, I know that this issue was raised by other Peers. The noble Lord, Lord Reid, raised specific examples of what he had seen in Scotland. We have seen examples of this through the PbR pilots. For example, as part of the pilot at HMP Doncaster, ex-service personnel are being matched up with mentors who themselves are from service backgrounds to support their rehabilitation on release from custody.
I cannot say that we will bring back amendments in this Bill to create a new veterans’ court, and in fact legislation for a pilot may not be required. However, to pick up the point made by the noble Viscount, Lord Slim, I fully acknowledge that we need to give this issue particular thought and much more careful consideration, and the department is already looking at it. I invite all noble Lords across the Chamber to work with us in this respect; I would welcome the opportunity. That will enhance and develop our discussions further, and I think that we will benefit a great deal from the expertise in your Lordships’ House.
While we will continue to ensure good practice is continued and developed among providers, we will also consider what further options may be required for the longer term. I noted in particular the comment by the noble Lord, Lord Ramsbotham, when he talked about the establishment of such a court and what surrounds that court—the need for support that goes much wider. It is important that the Government, and indeed the House in its contributions in looking at this matter, take a very holistic approach.
With those reassurances of our continued and passionate shared commitment, as expressed around the House today, to develop support for ex-service personnel, I hope that the noble Lords are able to withdraw their amendment.
Lord Beecham
My Lords, I express a sense of slight disappointment with the Minister’s reply. I am grateful to the noble Lords who have supported the amendment. I rather expected the Government to say that they would at least go forward with a pilot, whether or not legislation was required for that. I would have hoped that they would acknowledge that there would be space in the Bill to allow for the establishment of these courts if legislation were required for that, although maybe it is not—it will be interesting to find out on Report if it would require legislation to establish this system—and for the Government to allow for such an eventuality after a pilot. If the Government are not prepared to give an assurance that a pilot will be mounted, it will be necessary to bring this amendment or something like it back before the House and, perhaps, to test its opinion. Sympathy is welcome but, as we have heard already this afternoon, sometimes it only goes so far.
Lord Ramsbotham
My Lords, this is a probing amendment drafted by the Prison Reform Trust, reflecting a great number of concerns put to it by practitioners. Although there is general approval of and welcome for the intent of the Bill, as has been voiced throughout this Chamber today and on the previous Committee day, there is concern that we do not know a great deal of the detail. Based on experience, those of us who have been involved in the criminal justice system in one way or another are concerned that it is the very lack of detail that it is likely to inhibit the advance of whatever is proposed. The amendment therefore does not aim to put a spanner in the works—far from it. Like many other noble Lords, I want to see the Bill come to fruition. I want something to be done about this terrible reoffending rate, if that indeed is the right term. What is more, I want whatever is introduced to be sustained and not a sort of one-day wonder.
At the heart of a lot of what is being proposed is the introduction of payment by results. I declare an interest as chairman of the All-Party Penal Affairs Group. We have been involved with the drug and alcohol recovery pilots, eight of which are currently running. They went live in April last year and are being run by the NHS. There was a long two-year period before they were introduced and they are being academically evaluated over three years by Manchester University and Birkbeck University. I think that they are very relevant to what is being proposed for the criminal justice system because they involve practitioners in the field. Those monitoring these pilots in the National Health Service have looked at the payback mechanism straw-man proposal for this Bill which, like all the papers we have before us, was published only last month. Although saying that in some respects what is proposed looks promising, they point out that it raises questions, many of which relate to the absence of numbers or qualitative weighting—or, indeed pilots—which does not give one a great deal of confidence in what is alleged.
In addition, they are concerned that there is no mention of the overlap and tension for both users and providers involved with other payment-by-result schemes such as the Work Programme, the NHS alcohol treatment programme, the NHS dual-diagnosis programme, the troubled families programme and indeed, in the case of the Ministry of Justice, the drug and alcohol recovery programme, all of which are connected with the offender rehabilitation programme and some of which could impact on the plans made and payment claimed for an individual who is subject to more than one payment-by-results programme. There does not appear to have been any resolution of that.
Various concerns suggested by other payment-by-result initiatives do not seem to have been fully addressed. For example, there is considerable concern about what is referred to as gaming—the public’s private sector providers playing games with the payment, the assessment or the people they actually put forward for it. To get over that, the National Health Service has put in place a mechanism called the National Drug Treatment Monitoring System, which has treatment outcome profiles and local area assessment and referral services, because it found that unless it does that, there is a great danger of it being taken for a ride, which it cannot afford.
There is also something proposed called the learning-curve discount scheme that nobody seems to know much about because we do not know whether providers are going to be able consistently to reduce costs and/or improve performance and therefore come up with something earning a discount. Also, there is no mention of the significant transition costs of payment by results, which other people have found both in establishing the data management systems for managing the outcomes and the substantial bureaucracy required to manage them. If they are being managed by the current system, which is working flat-out to manage current offenders, I wonder how it will cope with the problems of the payment-by-results schemes. There is also the problem of verification of outcomes which when they are delayed can cause problems with cash flow and therefore the whole payment-based system. I mention those not to be a Jonah but to say that I hope that all these have been taken into account by the Ministry of Justice, which, not having pilots of its own does not have the advantage of practical experience. I hope that it is cashing in on the experience of others to make certain that it does not fall into the same trap.
I admit to two other doubts which I must voice. The first is about costings, and I refer to an answer given by the Minister to the noble Lord, Lord Beecham, on Amendment 7A when he said that,
“competing the community payback contracts in London saw a £25 million saving over four years”.—[Official Report, 5/6/13; col. 1214.]
It is true that the Serco bid undercut the probation service bid by £24 million for a four-year contract. However, that started only last year and that £25 million does not include the costs of running the competition which went on for more than two years and must have been substantial. We also have to consider, when looking at value for money, that the contract has only been running so far for less than a year with three years to go. The probation service is very sceptical that someone such as Serco will put in quite such a low bid next time when recompetition comes up based on actual experience of running the thing. It would regard its bid as being more realistic based on its experience. So the jury is out and I am concerned that too much emphasis is being placed on savings that have been made when a contract has cost less when we have not yet seen the outcomes. The Prison Service has a bad track record on this. I remember complaining once when it excluded central administrative costs from a competition bid with the private sector to run a prison and then claimed that it had won. When the National Audit Office looked at it on a level-playing field it found that the bid had not been put in correctly.
My second doubt concerns time. I refer to the chart on page 34 of the White Paper, which sets out the Government’s timetable. This says that the new probation service, which presumably will include the 77% of privatised elements, will be introduced by autumn next year, after which the new competed services will go live.
If it took two years to compete the London community payback, and if it took two years for the National Health Service to set up its eight pilots for the drug and alcohol recovery schemes, I wonder whether it is realistic to expect that, in the one year between now and then, the Ministry of Justice will be able to complete all the contracts, all the recruiting and all the training of all the people who are needed to carry on with what is proposed while, at the same time, with the same staff, conducting the essential work that has to be done now with offenders. As I say, it is not that I doubt the intent but I question the practicability. I therefore wish that we would be given a more realistic timetable based on actual possibilities rather than the allegations we have been given on page 34.
My last request is that the Minister, who said that he hoped to have the new impact assessment with us by Report, will make certain not only that it is with us by Report, but that it is with us in plenty of time for us to consider it before Report, to make Report a more meaningful exercise.
That is why I am asking the Secretary of State to produce an annual statement of how all this is working out. Certainly, if I were the Secretary of State, I would want such a document on my desk every year anyway. Therefore, rather than asking for something additional, I am asking for something which I presume will be produced to be shared with both Houses so that we can keep abreast of what is going on in this hugely important venture which, in intent, enjoys the support of the whole House. I beg to move.
Lord Beecham
My Lords, the noble Lord has fired a salvo of questions and critiques of the Government’s proposals. It will be interesting to see what defence the Minister can put up to them. The noble Lord has made many telling points, not least the question of the timetable, which looks ridiculously short. The Secretary of State in his previous capacity introduced the markedly unsuccessful Work Programme, which was also rushed through with pretty abysmal results. There must be some danger, particularly if the exercise is rushed, that we will see repetition of that. It occurred to me to think as the noble Lord was talking about this transition that one can envisage staff members being involved in that transition. Does that mean that they take, for example, their caseload with them? Will the cases of those who are being supervised and who will transfer into the payment-by-results system remain with probation or, if the probation officer in question is to be moved over—presumably some of that will happen—will the case go across to the payment-by-results providers? Or will they be excluded? It all seems highly mysterious.
Lord McNally
Deary, deary me. If the best we can do is some anecdote about paint not turning up on time, that must be a sign of some pretty thin paint. Of course, we are at the very start of the Bill’s progress; it is the second day of Committee in its first House. I am perfectly happy to acknowledge that noble Lords can ask all kinds of questions about what is done—“Give me firm answers now”. However, the truth is that we are doing something extremely radical, which the previous Government tried and backed off from. Let nobody doubt that payment by results in this area is exciting.
By the way, I think that the noble Lord, Lord Beecham, should take full responsibility for that paint story. I cannot imagine that the noble Lord, Lord Ponsonby, who is a gentle soul, would attempt such a malicious intervention. It has Beecham fingerprints all over it. Let us be clear on that.
Lord McNally
Yes. I have never suggested that the noble Lord, Lord Ramsbotham, is trying to throw a spanner in the works. I know that he wants this to work as much as I do. One of the values of the parliamentary process is that legitimate questions are asked about how this or that will be done. As the process unfolds, I will do my best to make sure that the House is informed.
We are working at this moment, not in advance of legislation but within the department, on how contracts and competition will work. We are not entirely flying blind on this because, as the noble Lord, Lord Ramsbotham, has said, payment by results has been tried in other parts of Whitehall. Of course we are taking advice and learning from both the successes and the failures of other departments. That is being built into our process. The noble Lord referred to gaming in the NHS experience. That will certainly be looked at. He mentioned transition costs being built in, and verification. We are working and consulting with other departments on these matters. It is very interesting. I can remember the first prospects for privatisation of prisons and a lot of the debates that went on. Even the noble Lord, Lord Ramsbotham, would acknowledge that with the privatisations of prisons lessons and efficiencies have been shown and standards set which have been to the benefit of the prison system as a whole. We anticipate that a similar process will take place in this case.
The Government are very clear that we are trying to carry through quickly a very radical programme, addressing a problem which defeated the previous Government. As earlier debates today have shown, our attempts to address it have widespread support across the House.
We will need to have a good understanding of the support that probation providers give to short-sentenced offenders during licence and supervision. We will need to keep a very close eye on the proportion of offenders breaching supervision, and on how magistrates decide to respond. We will also need to watch very carefully for any changes in sentencing practice.
As I have made clear, it is not the Government’s intention that this Bill will result in changes in sentencing practice, and nothing in the Bill alters the existing custody threshold. However, let me reassure noble Lords that we will be monitoring this and other issues extremely closely. Again, the noble Lord, Lord Ramsbotham, is quite right that there are a lot of other initiatives. This Government are exciting and radical, and are doing things across the piece. Of course, progress we are making in other areas will impact on the criminal justice system, just as our successes will impact on other parts. That is what happens when you have a radical Government.
We will also make sure that we are open and transparent about sharing data and information wherever we can. There are already well established mechanisms for making available many of the types of information that the noble Lord, Lord Ramsbotham, has highlighted in his amendment. On changes in sentencing trends, for example, we publish every quarter a Criminal Justice Statistics bulletin that includes detailed information on sentencing outcomes and trends. This is a national statistics publication, so it is subject to the appropriate checks and safeguards. Any changes in sentencing practice will be clear from this report. In addition, the Sentencing Council has a duty under Section 130 of the Coroners and Justice Act 2009 to publish a report every year on the impact of changes in sentencing practice on prison and probation costs. Any changes to sentencing practice as a result of this Bill will fall under that duty. The independent council, with all its expertise on sentencing, is best placed to carry out that analysis.
Similarly, on breach we already publish licence recall statistics every quarter in the Offender Management Statistics Quarterly Bulletin. Again, that is a national statistics publication. We want to make sure that, in the future, that includes recalls of prisoners released from sentences of less than 12 months, and includes committals to custody for those proven to have breached a supervision requirement. Likewise, we publish proven reoffending rates every quarter, broken down by type and length of sentence. That is also a national statistics publication.
I hope this makes it clear that we are not starting from scratch. I also take pride in the fact that this has been one of the most proactive Governments in putting out their statistics and information, allowing various parts of the Government to be checked on performance. The Government have worked hard over the past three years to improve the transparency of the criminal justice system, and we would look to make available much of the information that Amendment 34 details through the existing mechanisms we have.
The Secretary of State is already subject to a duty to publish information of this sort. As I suspect the noble Lord is aware, given that his amendment follows some of its language very closely, Section 95 of the Criminal Justice Act 1991 requires the Secretary of State every year to publish such information as he considers expedient on a range of topics, including information that allows those working in the justice system to become aware of the financial implications of their decisions and information that allows those working in the justice system to understand the effectiveness of different sentences in preventing reoffending.
We already consider it expedient to publish not just annually, but quarterly, much of the information that Amendment 34 mentions. That will continue to happen if the provisions of the Bill receive the agreement of both Houses. Therefore, while I understand, welcome, and agree with the intentions of the noble Lord in tabling this amendment, I hope that what I have said reassures him that the Government are committed to understanding and sharing the impacts of this Bill and to being as transparent as possible in delivering it forward.
In doing so, I remind noble Lords that costs for extending supervision will ultimately be dependent on the outcome of competing offender services in the community. If we were to give figures at this stage, it would put at risk our ability to agree value-for-money contracts with providers. However, I hope that my commitment last week to take away the impact assessment for the Bill and to consider how we could expand it will provide some additional assurance. Work is under way to revise the impact assessment as I speak, and I hope to be able to bring back a revised version soon. I know what has been said about the value of that on Report. In the light of these assurances I hope the noble Lord will feel able to withdraw his amendment.
Lord Beecham
Lord Beecham
My Lords, the noble Lord, Lord McNally, provokes a vision in my mind. I see him as a sort of parliamentary Caliban, proclaiming constantly: “Oh brave new world, that has such legislation in it”. I cannot say that he is altogether persuasive in the claims that he makes for this legislation, well motivated though it is, let alone the rest of his Government’s exciting and radical agenda.
In these amendments I look at two exciting and radical parts of the Bill. Amendment 35 addresses the provision in Clause 18 that empowers the Secretary of State to make an order that may,
“make different provision for different purposes, and … amend, repeal or revoke legislation”.
These are probing amendments only, but it would be helpful to know what the Minister envisages by, to quote the preceding subsection,
“consequential, supplementary or incidental provisions in relation to any provision of this Act”.
Can he exemplify the sort of thing that might be covered by the order-making power conferred by Clause 18(2)?
Amendment 36 relates to Clause 19, the substance of which goes even further in giving the Secretary of State power to,
“make other transitional, transitory or saving provision in connection with the coming into force of any provision of this Act”.
Such an order may,
“make different provision for different purposes”,
and so on, and,
“An order … is to be made by statutory instrument”.
Would that require the affirmative procedure or only the negative? The power is potentially so wide, as is the power in the previous clause, that it should require the affirmative procedure rather than merely the negative procedure. Will the noble Lord elucidate the position?
Lord McNally
The noble Lord beat me. I have been racking my brains for a suitable Shakespearean quote to come back at him. I suppose we could say that this is a “Government of wonders”. I am reminded of the late Lord George Brown, who, when he was Economics Minister, stood up at the Dispatch Box, banged it and said “This Government are running the economy in a way that it has never been run before”, and was then surprised when the Opposition cheered him to the echo.
In this last group of amendments, we turn to the provisions on consequential and transitional arrangements. The provisions in Clauses 18 and 19 are mainly technical, and are also fairly standard constructions, which can be seen, for example, in the Criminal Justice Act 2003. The noble Lord, Lord Beecham, seems to be saying that these amendments are designed to ensure that Parliament has a say before order-making changes are made.
Clause 18 allows the Secretary of State to make provision that is consequential, supplementary or incidental to the provisions of the Act by an order that is subject to the negative procedure. This clause mainly amends other statutory schemes, some of which are complicated and technical in nature. It is therefore eminently sensible for there to be a power to make the consequential or other changes needed to ensure those provisions work well with the provisions of this Act.
Those changes should be subject to the negative procedure where possible. Clause 18(6) makes it clear that where an order under Clause 18 is made that amends another Act, it is subject to the affirmative procedure. Amendment 35 would remove Clause 18(2), which makes it clear what the power can be used for. The power itself is conferred by subsection (1), so the amendment makes it unclear what the power may be used for: it would not remove the power. There will be an opportunity to scrutinise the technical changes made by any order made under Clause 18. I do not believe that these have to be affirmative orders, and where the order is not subject to the affirmative procedure it will be subject to the negative procedure.
Amendment 36 is more specific in that it would make any order made under Clause 19 subject to the affirmative procedure. Clause 19 makes arrangements for transitional provisions and introduces Schedule 7, which sets out in what circumstances the changes made by the Bill apply. For example, it sets out how the new supervision changes apply to different sentences in different circumstances. The power to make transitional, transitory or saving provisions can be used only if those provisions are related to a commencement order. Under this Act, commencement orders are, as is usual, not subject to a parliamentary procedure. It would therefore be odd for the power to include transitional, transitory or saving provisions on commencement to be subject to the affirmative procedure.
Clauses 18 and 19 are needed to implement primary legislation flexibly, and they are often technically complicated. I do not think that noble Lords would particularly welcome a detailed debate on affirmative orders. I do not know: I could think of one noble Baroness who would relish a detailed debate on affirmative orders. Oh, she has gone. We teased the noble Baroness, Lady Hamwee, earlier. I am not convinced that such a debate is a good use of your Lordships’ time, or is what this amendment actually intends.
In asking the noble Lord to consider withdrawing these amendments, I take the opportunity to say that this has been very useful and productive Committee consideration of this Bill. We will return to detailed points on Report and we have already had a few Mafia-like warnings—you know where we live—that there will be consequences if we do not respond. However, I have appreciated the general support on all sides of the House for what we are trying to do in tackling the problem of reoffending, which has proved very difficult for successive Administrations. We claim no genius in our solutions, but we are genuinely trying to find both the resources and the flexibility to tackle this problem. The contribution of this House to getting it right is enormously appreciated.
Lord Beecham
I am grateful to the noble Lord for his reply and his essentially good-humoured approach for most of the time we have been discussing the Bill. I made it clear at the outset that these were probing amendments only, so he perhaps went a little further than he needed to in responding. Nevertheless, I am grateful. I echo his words about the proceedings having been useful. How productive they have been will very much depend on the Government’s response on Report. I hope it will be a little more positive than he has indicated, or has been allowed to indicate, so far. I beg leave to withdraw the amendment.
Offender Rehabilitation Bill [HL]
Lord Beecham Excerpts(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
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.
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.
Lord Beecham
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.
Lord Beecham
“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.
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.
Lord Beecham
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.
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.
Lord Beecham
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.
Lord Beecham
“(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.
Offender Rehabilitation Bill [HL]
Lord Beecham Excerpts(11 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
“Probation service reform: Parliamentary approval
No alteration or reform may be made to the structure of the probation service unless the proposals have been laid before Parliament, and approved by resolution of, both Houses of Parliament.”
Lord Beecham
My Lords, we now come to the black hole in this legislation. Astonishingly, given the scale of the changes proposed for a major national public service, the Bill does not deal with the proposed restructuring of probation. It is quite remarkable that this should be the case.
I have complained from time to time about the Government’s habit of engaging in pre-legislative implementation. What they are doing to probation is, in fact, worse: they appear to be about to implement their proposals without any legislation at all. What we see in the Bill is a series of consequences of their proposals rather than a proposal. This is in connection with a service which has met and exceeded all its targets, which won the British Quality Foundation gold medal for excellence for its achievements over many years and which has very high ratings from those with whom it has to deal: 98% of victims approve of the work of the probation service in the feedback that they have supplied and 82% of supervisions were completed satisfactorily. The record on the timeliness of reports to courts was as high as 99%. Only just under 50%—49%—of what is by any standards a difficult client group were placed in employment after serving their probation order.
Yet the Government now propose a massive change which will effectively exclude around half the work of the probation service from its future deployment. Some 70,000 cases will be effectively privatised. The probation service will be unable, in its present form, to bid to carry out the work which the Government have determined will be subjected to competitive tendering.
The service has done well in reducing reoffending. The Secretary of State has drawn attention to the reoffending rates. He has noted that, for those serving sentences of less than 12 months, reoffending rates have been rising. We have heard today about the scale of the problem of that group. Of course, that is a group for which the probation service has no responsibility. Where it has responsibility, for those with longer sentences, it has done extremely well in reducing reoffending. The Government propose effectively first to nationalise and then virtually to privatise most of the probation service. They will centralise control. Probation trusts will disappear. There will be 21 areas in which the work will now be carried out by tendering. This will mean that much of the work currently carried out by the probation service, and all the work on short-sentence offenders which has not been carried out by the probation service but which the Bill seeks to address—I repeat that we welcome that—will now be carried out on a contractual basis.
There are many concerns about that. Certainly, one of the effects is likely to be a reduction in the degree to which justice is local along with greater difficulties for voluntary organisations wanting to be involved in the work. There would effectively be a binary system of risk, with categories of low and medium risk to be dealt with by organisations other than the probation service, but with the probation service being responsible for high-risk cases. Of course, this appears to ignore the fact that there is movement between the categories. Around 25% of offenders will change from one category to another, many of them becoming higher-risk.
The proposals will clearly lead to confusion. There is a risk, to which I shall return in greater detail when we discuss an amendment specifically dealing with the issue of risk, of the public lacking the protection that a properly administered probation service can afford in the 15,000 or so cases a year that move into the higher risk category. As we shall explore later, it is very difficult to see how those cases will be effectively managed.
We need a proper legislative framework for this exercise of transferring responsibility into the private sector. The Government display, as usual, a touching faith in the competence of the private sector but their record in this area of justice is not very convincing. There have been the huge profits made in relation to an inefficient and inadequate system of tagging, with many failures of the system and a great cost to the public purse. The Minister will no doubt say that that has been changed, that there will be new equipment, and so on. Be that as it may, the original providers certainly did very well for themselves but not very well in relation to the purposes for which they were contracted. Just yesterday we heard the appalling news about the young offender institution run by Serco, one of those massive organisations that purport to be able to do everything anywhere. It was a terrible report on the mistreatment of offenders in a young offender institution.
The unwavering determination of the Government to move from public provision to private provision potentially poses a risk to the interests of the community in matters of safety. We need a proper legislative framework if there is to be any change in the probation service. We need reassurances about a whole range of issues and we need parliamentary approval for a scheme which may bring changes to the probation service, a service that is highly successful.
The purpose of Amendment 20 in the names of the noble Lord, Lord Ramsbotham, and myself is to seek to ensure that any change in the probation service will take place only after the full details have been discussed and approved by Parliament, rather than by executive order or, as it may be, by statutory instrument. This is so important that it deserves to be dealt with by primary legislation. That would certainly be my preference. At the moment we do not have the details and I do not think that the Government have worked them out. They are rushing to implement this programme. Mr Grayling wants things in place in time for the general election. This is too important an issue to be rushed in this way, especially when they are doing so behind the curtain.
We have seen many changes to major public services under the present Government. The health service is in turmoil, despite all the warnings and a very long legislative process. There is a grave risk that we shall see something similar in terms of the impact on the service if the Government press ahead with untested, undebated and unapproved legislation to change what has been a very successful service. I hope that the Government will think again about this. I hope they will see the force of having their proposals properly scrutinised, debated and approved, if that is what Parliament wishes. At the moment, it does not look as though Parliament will have that opportunity, and that simply is not good enough. I beg to move.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I need the guidance of the noble Lord, Lord Beecham, on the correct pronunciation of the word “chutzpah”.
Lord McNally
Glottal or not, that is an extraordinary piece of chutzpah. He knows full well that the powers that we are taking to reorganise the probation service were embedded in his Government’s 2007 Act. It is interesting to recall that during the passage of that Bill through the House of Lords, the issue of parliamentary scrutiny of orders creating, abolishing or amending probation trusts was highly controversial. Originally the Bill did not include any parliamentary scrutiny but the Delegated Powers and Regulatory Reform Committee identified it as an issue for further investigation. My noble friend Lady Anelay of St Johns tabled an amendment successfully introducing the affirmative resolution procedure to this clause in the Lords. The then Government overturned the amendment during ping-pong by tabling their own concessionary amendment providing for the negative resolution procedure on the basis that that would provide sufficient scrutiny without unduly taking up parliamentary time.
That is the background. Nothing was done behind the curtain or anywhere else. No one has ever heard me, from this Dispatch Box or anywhere else, attack the record of the probation service. The probation service does an excellent job, and I hope it has a very clear future ahead of it with a national role. However, we have to ask whether these things could be done better and more efficiently. As well as the successes of the probation service, we have had as a background to this debate the very disturbing levels of reoffending. I agree with the noble Lord, Lord Beecham; the private sector will be very much on trial during this period. We in government who have been preparing the contracts and guidelines for this new partnership will have to work very hard to make sure that they are watertight in terms of delivering value for the taxpayer.
Lord Beecham
My Lords, we are in Committee and it is 9 pm, so I certainly will not press an amendment on this occasion. However, I must say that I am not persuaded by the arguments, such as they were, put forward by the noble Lord. At a fairly early stage in his reply he spoke of the savings that would be generated by the experience of the private sector. However, the private sector does not have experience of running probation. Serco, Group 4 and all these huge outfits which purport to be able to run all kinds of things, from the Olympic Games to prisons and many other services besides, do not have experience of running probation.
It is far from clear from the impact analysis, about which we heard earlier, what the financial implications will be. The noble Lord says that there will be a good relationship with the voluntary sector. That was part of the message that the Secretary of State used to sell the Work Programme in his previous job. So successful was that scheme that some 3.5% of people on unemployment benefit have actually been found a job. The voluntary sector, which was at first quite enthusiastic about the prospects, found itself effectively treated as bid candy and largely excluded from any of the major programmes that were advanced. It is rightly fearful that that will be the case if the Government’s proposals are implemented.
The noble Lord says that there is a need for a National Probation Service. That is questionable. I certainly was not party to the discussions of the legislation to which the noble Lord referred, but it is quite conceivable that changes to the probation service as envisaged, to be approved by the negative procedure, related to changes in the structure of 35 probation trusts. What is being proposed here is something much more radical. It is effectively the abolition of a probation service—certainly the abolition of all the probation trusts—and a centralisation that will be crucial to ensure that the Government’s intentions in this Bill are carried out.
Of course, however, the probation service, national or otherwise, is not going to be involved in the short-sentence provisions. The probation service will be excluded from providing for medium and low-risk offenders. As I have said, the estimate is that 70,000 cases a year will be run by the new private providers. There is no question about that, unless the Government accept a later amendment of mine—I am not very optimistic about that—which will allow the probation service to tender for such work. The Government are so keen on competition that they will not allow the probation service to tender for that work at all. Therefore, I cannot see the argument that the noble Lord is trying to make as being at all plausible.
In my view, we are seeing an ideological determination to limit the role of a major public service. In so far as there is a national service, I do not think that that is conducive to what is needed on the ground, which is, as we have heard and as the noble Lord accepted when discussing an earlier amendment, the need for close working relationships between all the organisations involved in the rehabilitation programme at local level. I cannot see how that can be driven by a national body without any local organisational manifestations. I have to say that it is arguable that 35 trusts is too few anyway, but it is certainly better than none at all. It is certainly better, whatever contracting system is being proposed, than the 21 areas to which the Government will be reducing the tendering process.
This is a deeply flawed proposal and, whatever happened in the past, it ought now to be the subject of proper parliamentary consideration, if not in primary legislation—as was the opportunity with this Bill—then certainly by the affirmative procedure. If the noble Lord is unrelenting, as he appears to be or as he is compelled to be, then on Report we will have to take this issue further and at that stage seek to test the opinion of the House. However, as I indicated at the outset, tonight is clearly not the occasion to do so and I therefore beg leave to withdraw the amendment.
Lord Beecham
“Proposed reform of probation services
(1) Subject to subsection (2), before instituting a system of payment by results for the provision of services to supervise offenders, the Secretary of State shall prescribe by statutory instrument a scheme for such a system, which shall be laid before and approved by resolution of both Houses of Parliament.
(2) Before such system may come into existence, the Secretary of State shall undertake a pilot scheme lasting three years in duration, which shall be independently evaluated, with the evaluation report laid before Parliament and approved by resolution of both Houses of Parliament.
(3) Any payment by results pilot shall be based upon existing probation trust areas.”
Lord Beecham
My Lords, another aspect of the Government’s proposals is the development of payment-by-results programmes. I will begin by quoting the report of the Justice Select Committee in August 2012. The committee said, of contracting out on a payment-by-results basis, that,
“we are not convinced that the Department has the necessary commissioning and contracting capability to achieve its objective. Currently its commissioning processes are often poorly designed, the stages involved do not whittle down contenders appropriately and bidders do not receive sufficient feedback at the end of the process. Furthermore, the potential benefits of payment by results programmes may not be realised because of structural problems in the Department and the National Offender Management Service”.
That was as recently as August last year. Will the Minister say to what extent these matters have been considered by the department, to what extent the situation has now improved and in what respects it has improved? It was a fairly damning indictment by the Justice Select Committee.
There was some discussion of this issue at Second Reading, and many questions were asked. The Minister—I think it was the noble Lord but it may have been his colleague—said then that discussions were taking place with potential providers. It would be interesting to know at what stage those discussions now are. What is the basis on which a payment-by-results scheme will be made? We have heard various suggestions that there will be a flat fee, which will be topped up by some kind of bonus. However, that is likely to be modest in relation to the total cost of the service. If it is not modest, will contractors take the risk? Who knows on what basis this will happen? There is very little about this—of course—in the infamous impact assessment. Will the noble Lord indicate what percentage of the total cost the Government consider will be paid by way of bonuses?
There are more questions to be asked. Will the scheme be the same for all offenders? We heard yesterday—I think for the first time—about the concept of cohorts, to which reference has already been made. The idea is to not look at individual cases but to take a whole group and study the reoffending rates—or rather, as we heard earlier by way of clarification, the reconviction rates. However, we do not know for what period that will apply. Will results be judged on a year’s basis, or will any offences taking place over a period of, say, two or three years—which one might have thought would be a more reasonable approach—be taken into account? If so, how will they be taken into account? It will not do for the Government to say that they do not yet know because they have not reached a conclusion with the contractors. They ought to know the basis on which they are advancing the new policy, and they ought to be able to tell your Lordships’ House—and, indeed, the world at large—about what they are doing.
Serious criticisms of this process have come from a variety of sources. The director general for public services at the Treasury said:
“We have now got a situation at the Ministry of Justice where Chris Grayling … is going to take a payment by results approach to almost the whole of probation. But some of us who have been around a long time get very nervous about panaceas … It is quite hard to get a firm handle on the numbers”.
I suspect that she is not a paid-up member of the Labour Party, or even of the National Association of Probation Officers.
The National Audit Office commented on the aim of getting smaller organisations involved—which is, as ever, one of the more attractive features that the Government wish to promote, although it turns out that they are doing so more in theory than in substance. The National Audit Office said:
“It is likely to require significant efforts by the Ministry for it to achieve its aim of creating a diverse and sustainable market, at least in terms of prime providers”.
At the risk of cherry picking, it said,
“the use of a binary measure could encourage providers to concentrate their efforts on the offenders least likely to offend and prevent them from working with the most prolific offenders”.
It is not clear how the cohorts are going to be made up. The noble Lord will no doubt say the matter will be resolved. Can he give any indication of how the cohorts are to be composed?
Lord Beecham
My Lords, of course I will withdraw the amendment at this stage but it is certainly a matter to which we will wish to return on Report. The Government have consulted widely but have not consulted Parliament. If it were not for the amendment, there would be no debate during our consideration of the Bill on the question of payment by results; the provisions would simply be implemented. I do not even know whether that would be done by regulation or executive order. I do not know what the current framework is but, whatever it is, it would not be the subject of debate in this Chamber before decisions were made. Again there has been no consultation on a major change.
The Minister refers to there being experience of payment by results in other areas, but this is a unique area. To begin with, it relates ultimately in its potential impact to public safety, and we will shortly discuss issues of risk. People’s lives and livelihood are at risk in this area and that makes this a different case from less dramatic eventualities, whatever the normal process of payment by results might mean. The Government no doubt piloted the Work Programme; that experience has been pretty much a disaster. What have the Government learnt from that in terms of payment by results, whether on the supply side, which turned out to be pretty exclusive when it came to voluntary third-sector organisation, or in terms of the outcomes? It would be interesting to know what areas the Government have tested and with what results. I could table a Parliamentary Question but perhaps the noble Lord can give an undertaking that either he or whatever part of Government is responsible—perhaps the Cabinet Office—will write instead and explain more fully the basis on which the comparisons have been made. That would be an interesting exercise.
Fundamentally, we are in territory where it seems that decisions have been taken pretty much on the hoof. Although I do not blame the noble Lord, we still have not received an explanation for the withdrawal of the two pilots in this area—the ones that we know took place. We are not allowed to know why they were stopped or what the evaluation was. I repeat now for the third time—that makes four questions in all—why were the pilots stopped, why have the Government refused the FOI request for the evaluation and will they now release it? If they are not prepared to do so, they must have something to hide or something which at least they wish to ignore. That is not a satisfactory basis for a change of the magnitude envisaged without discussion, other than by virtue of the amendment. However, I beg leave to withdraw the amendment.
Lord Beecham
“Provision of probation services
In any scheme (including pilots) for the supervision of offenders under sections 2 to 6, probation trusts and local authorities shall not be precluded from tendering for contracts.”
Lord Beecham
Well, my Lords, I return to the dance floor to gavotte once again with the Minister. The issue of risk is serious because it illustrates the potential dangers of this binary system of provision, to which I referred earlier. The definition of the categories of risk is somewhat controversial, to put it mildly, but we leave that aside for the moment. The probation service will not be responsible for low and medium-risk offenders, as defined, and is not even allowed to tender for these offenders. Yet high-risk offenders will be consigned exclusively to the probation service.
As I indicated earlier, there is a movement between categories of some 25%, suggesting that something like 15,000 people were moved from the medium to the high-risk category. How will that be dealt with under the contracts? At what stage will the contractor who was looking after offenders on the basis that they were medium and low risk be required to notify a change of risk? Will they indeed be required to do so? Will they be able to make that assessment? Will they be required to advise the probation service about it? These seem to me to be important questions.
The National Association of Probation Officers has produced some very interesting examples of people who were not regarded as high risk for the purpose of their current treatment. In recent documentation, NAPO actually gives 52 examples of so-called medium-risk cases. These include an offender previously convicted of Section 20 wounding, of a recent assault, who was regarded as medium risk. Another was convicted of wounding and had previous convictions for the possession of cocaine. Another was convicted of manslaughter and also had a previous conviction for manslaughter, but he was regarded as only medium risk. A current offender convicted of grievous bodily harm, with previous convictions for criminal damage and possession of a knife, was also regarded as medium risk. There was an offender with a Section 20 wounding conviction who had previously been involved in a Section 18 wounding, a knife possession, burglary and criminal damage; again, it was a medium-risk case.
One might ask what kind of assessment this is. Why are these people not regarded as cases which should properly be dealt with by the probation service? The Government acknowledge that the probation service has the qualifications and skills to deal with these offenders. Why is it that under the new arrangement these so-called medium-risk offenders, with all their past convictions, will be beyond the reach of the probation service? That is no good for them, and potentially dangerous for the rest of us. There are clearly very real risks in this course. My next quote is not from a Treasury civil servant and not from the National Audit Office, which the Minister affects to discount. It is from the Chief Inspector of Probation’s submission to the consultation document. She states:
“The interface between the dynamic management of risk of harm and PbR model, with its focus on reducing reoffending, in our view creates an inherent tension. We do not believe that this tension can be successfully managed within the framework proposed. Any lack of contractual or operational clarity between the public and private sector providers will, in our view, lead to systemic failure and an increased risk to the public”.
Of course, one might say that she has an interest because she is the Chief Inspector of Probation; but she is an inspector, not the probation service as such. It is even noted that the Police and Crime Commissioner for Devon and Cornwall, who I think is a member of the Conservative Party, has said that:
“I feel the risks are very high here. Probation do a very, very good job and I am concerned about the future”.
I suspect that many noble Lords—there are not too many of us in the Chamber—will share those concerns. We are talking about serious risks and a system which, on the face of it, seems unlikely to be able to cope properly with them. That is something which this amendment seeks to address. Although I will not press it to a vote tonight, it is certainly something to which we will want to return on Report. I beg to move.
Lord Beecham
My Lords, it is just as well that I am not being paid by results. I apologise for skipping, as it were, Amendment 22. I heard what the Minister said, but the reality is that the probation service will not be allowed to tender for the short-term prisoner contracts. Whether there are probation trusts or not, that is a mistake. If we are going to have a mixed economy, let it be a mixed economy, and let at least the probation service be allowed to tender. But even if it is not allowed to tender, perhaps the noble Lord would consider whether other agencies—for example, local authorities as they are involved in crime and disorder reduction partnerships—might be allowed to tender. The Minister may be able to respond to that. I do not know.
In relation to the risk issues, the problem will potentially arise out of the change of risk. Perhaps the Minister will not be able to reply to this immediately, but if a proportion are deemed to have changed their risk profile, what impact would that have on the contracts? I know we are talking about cohorts not individuals, but we are talking about potentially 15,000 cases. Even with 35 contract areas, that is several hundred people per contract area. Presumably, it will have some significance. We are not talking about a minuscule proportion of cases. How will that impact on the contractual arrangements? What provision will there be in the contract regarding that particular outcome? Again, this is not something that I necessarily expect the Minister to be able to respond to tonight, but I should be grateful if he would confirm that he will write to me and place the letter in the Library of the House. In the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
“Requirement on Secretary of State to request probation and supervision providers to report on breaches and handling of services contracts
(1) The Secretary of State shall require all providers of probation and supervision services to provide information, report numbers of breaches, and to provide a comprehensive assessment of their management of the contract to provide probation services.
(2) The provider of probation and supervision services shall be required to produce an annual report, which shall be laid before Parliament.
(3) Where appropriate, the report should include deemed outcomes of supervision orders, including a breakdown of supervision order requirements, and the explanation for breaches and the failure of offenders to comply.”
Lord Beecham
My Lords, this is a very straightforward matter. The amendment simply seeks the collation of information from providers, whether of probation services or otherwise, so that it can be collated in an annual report and received in Parliament. I think that is certainly necessary in the early years, although maybe when the system settles down, in whatever form it ultimately takes, it will be a different matter. However, given the sensitivity around the proposals and, as the Minister himself puts it, the “radical” nature of the proposals—and bearing in mind our shared objective here, which is to reduce reoffending and to afford as much support as we can to people who have offended but need to reintegrate into society—it seems to me that the request that the information should be available to us is a fairly basic one. I hope the Minister can accept the spirit, if not necessarily the precise wording, of the amendment. I beg to move.
Lord McNally
My Lords, the noble Lord is always reasonable in his requests, but the implications are less reasonable. The impact of the amendment would be that all providers, regardless of size or place within the supply chain, would be required by law to produce an annual report for Parliament, as it does not distinguish between prime providers and smaller providers within the providers’ supply chain. This would provide a disproportionate level of scrutiny on a single aspect of service delivery.
I assure noble Lords that there will be a defined data set within the providers’ contract. This will detail what performance information providers have to produce and who is responsible for producing it. We envisage that this would include information such as the number of offenders supervised under top-up supervision and breach rates. We will ensure that reporting requirements strike a balance between providing enough information effectively to hold providers to account for their service delivery and minimising the bureaucracy required to collect and report the data. The Government will publish data and statistics relating to probation service delivery in line with our current practices. I hope the noble Lord, in the light of this, will agree to withdraw the amendment.
Lord Beecham
I take the Minister’s point and beg leave to withdraw the amendment. I indicated that the wording might possibly be capable of being refined. If we can achieve that one way or the other, that would be satisfactory.
Lord Beecham
My Lords, this is simply a probing debate, to explore the rationale behind Clause 8, in particular the length of the extension period contained in it. The extension period is one year, and I would just like the Minister to elucidate the thinking behind that and why that particular period has been chosen in respect of these matters.
Lord McNally
An extended determinate sentence or EDS is the sentence that is given to dangerous offenders. This is the sentence that replaced the IPP sentence in December 2012 as a result of the changes made in the Legal Aid, Sentencing and Punishment of Offenders Act. An EDS is made up of a custodial term whereby offenders serve at least two-thirds of the sentence, after which the most serious offenders are considered for release by the parole board. After release, offenders are subject to extended-licence supervision. Clause 8 essentially closes a loophole whereby offenders serving an EDS could, although only in wholly exceptional circumstances, spend less than 12 months under supervision on release. Clause 8, by requiring the extension period of licence for these sentences to be at least a year, ensures that in every case offenders released from custody will serve 12 months under supervision. It is highly unlikely that an extended sentence would be imposed that resulted in less than 12 months of supervision. For this to happen, the sentence imposed by the court would have to relate to a dangerous offender who had received a surprisingly short custodial period where the court had chosen not to extend the licence period. I should stress that this is extremely unlikely to occur and there is no example of it having happened but we are taking the opportunity of this Bill to ensure that it does not happen in the future.
Lord Beecham
“(4A) After section 76(5) (subordinate legislation) insert—
“(5A) An order making any provision by virtue of section 63 or 70 regarding Class B drugs may only be made if the statutory instrument has been laid before and approved by resolution of each House of Parliament.””
Lord Beecham
This is a fairly simple amendment. It requires the Government to seek approval for changes to the list of class B drugs for the purposes of the Bill as set out under the heading,
“Drugs and offenders released during custodial sentence”.
If it is thought sufficiently significant for class B drugs to be involved and for the list to be changed, then, following the effective precedent of the Bill in dealing with drugs issues, it seems to me that the Government should proceed by way of an order to be debated here. It is presumably not likely to be a frequent occurrence but one would hope that some element of parliamentary oversight would be involved. It may be that the Government intend that anyway but it is not clear from the Bill. Perhaps the Minister could clarify the position. I beg to move.
Lord Ahmad of Wimbledon
I am thankful to the noble Lord, Lord Beecham, for summarising his thinking behind this amendment. Clause 10 amends Section 64 of the Criminal Justice and Court Services Act 2000, which allows for the Secretary of State to impose a drug testing requirement on offenders aged 18 or over released from prison on licence. The Bill deals with efforts to improve the rehabilitation of offenders and to cut reoffending. Many noble Lords will agree that tackling offending behaviour will often mean tackling an offender’s problem with drugs. Drug use is common among offenders serving custodial sentences. One study reported 64% of people surveyed as having used class A drugs and 74% as having used class B or class C drugs.
Research has also shown that drug use among prisoners is strongly associated with reconviction on release, with the rate of reconviction more than doubling for prisoners who reported using drugs in the four weeks before custody, compared with prisoners who had never used drugs. And it is not just class A drugs that are associated with higher reconviction rates. Offenders who use class B or class C drugs in the four weeks before imprisonment had a reconviction rate of 48%, compared to 30% for those who had never used drugs. What drives this association will vary from offender to offender. For some offenders who are dependent on, say, cannabis or amphetamines, their crime may be linked to the need to fund their drug habit. For others, a propensity to misuse such drugs may expose them to other offenders, risky environments or situations that encourage further reoffending. That can make the process of rehabilitation that much harder. If a connection, direct or indirect, with class B drugs, such as cannabis or amphetamines, is a factor in a significant number of offenders ending up in custody or reoffending, we should do what we can to support offenders to break that connection. Testing for class B drugs is designed to complement those activities.
Turning to the substance of the amendment moved by the noble Lord, Lord Beecham, Section 70 of the Criminal Justice and Court Services Act 2000 currently provides a power for the Secretary of State to specify via statutory instrument the class A drugs for which an offender released on licence can be tested. This power is subject to the negative resolution procedure. In extending this order-making power to cover class B drugs, we have proposed to keep the negative resolution procedure. It is important that if changes need to be made to the list—for example, if drugs are reclassified or renamed or new drugs appear—that can be done quickly. When initially specifying what class B drugs are within scope, we will, of course, want to look in detail at the evidence for their usage by offenders, their links to reoffending and the availability of testing equipment. I should also point out to noble Lords that the Delegated Powers and Regulatory Reform Committee did not raise any issues with this extended power remaining subject to the negative resolution procedure. I hope the noble Lord, Lord Beecham, will feel able to withdraw his amendment.
Lord Beecham
My Lords, I thank the Minister for his reply. I am satisfied with it as it clarifies the situation. I rather thought that that would be the case, and I am grateful for his confirmation that that is correct. I beg leave to withdraw the amendment.
Lord Beecham
“Resettlement prisons
Before the Secretary of State may institute the proposed system for resettlement prisons, whereby an offender is held in a prison designated to the area to which he will be released, for a period of months before release, such system must be set out in regulations and laid before both Houses of Parliament for debate.”
Lord Beecham
My Lords, this is yet another proposal from the Government that is not included in the Bill and about which there again seems to be no real opportunity for parliamentary oversight. The notion of resettlement prisons is attractive, but there are a number of questions to be asked about it, in particular, about how the system is going to work and the potential costs. There are also questions in relation to women prisoners especially because at the moment there are only 13 prisons for women and there is concern that, since they are not evenly geographically distributed, women may be housed in one place and then moved to what is, effectively, an all-male institution close to their home because there is no women’s prison in that area. There is concern that that would be potentially very difficult. I do not know whether the Government have in mind locations for the resettlement prisons. The figure was about 70, if I remember correctly. Have they given any thought to the position of women in that context, given the relatively small number of women’s prisons dedicated for that purpose?
By sheer coincidence, the Minister has kindly replied to a Written Question today giving me information about the home locations—he is looking puzzled; I assure him he has—of prisoners held in the north-east. The figures are quite interesting and reinforce some of the concern that I and other noble Lords have or might have about the situation. They show that 59% of young offenders have home addresses outside the north-east region and 39% inside it. So 39% of young offenders are in prison in the area where resettlement would occur but 59% are not. The 2% difference is because the data are not clear. The figures are pretty much reversed in respect of adult prisoners.
I repeat that 59% of young offenders are from outside the north-east region but are imprisoned there, while only 41% of those in the north-east are from the region. Some 39% of adults, those 21 years and over, come from outside the region, while 61% from inside. These are substantial percentages and the numbers are quite significant—289 young offenders and 2,048 adult offenders are currently in prisons other than in regions to which they would presumably be returning.
The Minister’s letter, which he may or not have read before he signed it—
Lord Beecham
I am glad the Minister is prepared to do that. The letter says that the vast majority of prisoners transferred to NOMS North East Region are from adjacent areas. An adjacent area could be the north-west of England. I know that there are significant numbers of prisoners from the north-west of England in prisons in Northumberland. The north-west region runs from Cumbria to Cheshire. To say that is an adjacent region does not take us very far, especially as I suspect most of the offenders will come perhaps from the Merseyside and Manchester conurbations. That would be a reasonable inference. This is a significant number of people to be resettled somewhere nearer home and that is just from one region. How much have the Government thought through the implications of dealing with this? Have the Government given consideration not only to the numbers but the length of time during which the resettlement will take place? I raise this point because it has been raised by organisations concerned with women prisoners especially. Has it been looked at from their perspective?
Incidentally, the letter says, in a point which rather echoes the point about women prisoners and which may account for the figures for young offenders, that there are fewer establishments holding young offenders and they are on average likely to be further from their home area. How realistic is this resettlement process likely to be? It looks to me as though the north-east region is accommodating considerably more than its “fair share” of prisoners. It would be interesting to know how many north-east prisoners are housed elsewhere but I suspect that we have a surplus of accommodation in the north-east and that is not going to assist in the resettlement process. How developed are the Government’s plans? The amendment therefore seeks details and for a scheme to be set out in regulations and laid before both Houses for debate. That would be ideal but at any rate some oversight of the detail and the implications of this scheme are needed, which as I say is welcome in principle but it is difficult to see quite how it is going to work. It may be that the Government are going to take some time over this and that may be necessary, but any indications at this stage would be gratefully received. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I first thank the noble Lord, Lord Beecham, for tabling his amendment and for then detailing specific issues in relation to women, young adults and a region with which he is far more familiar than is any other noble Lord currently in the Chamber. Nevertheless, he raises some important issues specifically about women prisoners. Indeed, we heard earlier during the debate about the importance of this issue.
From a general perspective, the main purpose behind this proposal is to co-ordinate better the delivery of rehabilitation through an offender’s time both in prison and then in the community. Most offenders will spend the final part of their sentence in one of their home area’s designated resettlement prisons, which may involve prisoner movement, but it is also unlikely to result in any significant increase to the number of transfers carried out.
On the issue of women prisoners and young adult offenders, it is very important that we make the best use of the existing provision for women offenders in the prison estate, both taking account of its size and the geographical spread. We will be consulting with both providers and stakeholders to design the most suitable resettlement arrangements for women offenders, ensuring that, wherever possible, women offenders are held as close to home as possible and with strong links with providers of rehabilitative services. In an earlier debate this evening, we discussed the importance that the Government lay on family issues, particularly in relation to women offenders.
Young adults have some of the highest reoffending rates, and it is crucial that these reforms are delivered to this group of offenders. Again, we are planning to consult providers to ensure that they design the most suitable model for young adult offenders, taking account of existing provision in the prison estate for this group.
The amendment itself would restrict the ability of the Secretary of State to set up a system for sending prisoners to resettlement prisons prior to their release by requiring this to be done in regulations. Such a restriction would be unprecedented intervention by Parliament in the operational management of prisons. The role is conferred by the Prison Act 1952 on the Secretary of State, although, in practice, the Prison Service is run by the National Offender Management Service, as noble Lords are aware. The power is a broad one for a very good reason: NOMS needs operational flexibility to respond swiftly to fluctuations in prison numbers and to move prisoners around the prison estate for a number of reasons, including access to appropriate interventions as a result of security information or, indeed, for the prisoner’s own protection. Policies for the allocation of prisoners are set out in the Prison Service instructions, which are published; accordingly, such policies are both accessible and transparent. I therefore hope, with the explanation I have given, that the noble Lord will find it appropriate to withdraw his amendment and agree that operational arrangements are matters more appropriately left to the Secretary of State.
Lord Beecham
I am not sure that I would leave very much to the present Secretary of State, but that is by the way. The question is surely that this is a welcome, novel scheme which ought to be at least discussed. I cannot see why there should be any inhibition on the part of the Government to laying out their proposals for discussion. It may be that seeking to deal with the matter by regulation may be regarded as a step too far but, at the very least, it should be subject to some parliamentary debate. There are people in your Lordships’ House who can contribute to that kind of debate very effectively, I should have thought. I do not necessarily include myself in that group, but there are people like the noble Lords, Lord Ramsbotham and Lord Bradley, and the noble Baroness, Lady Corston, with a record of involvement. These are the very people who should be contributing to a solution to a problem which the Government rightly identify and want to do something about; there is no difference between us on that. Why be so defensive about it? Why not be open about it, have the discussion and let us try to improve the situation with the contribution that Members, particularly of this House, are in a position to afford?
I do not see why the Government should stonewall on this issue. However, it is two minutes to 10 pm. The Chief Whip is with us; I tremble before her, as ever, and beg leave to withdraw the amendment.
Offender Rehabilitation Bill [HL]
Lord Beecham Excerpts(11 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
My Lords, the whole House will join me in thanking the Minister for his very clear exposition of the Bill and the proposals relating to it, which do not appear in legislative form, and in welcoming efforts to reduce reoffending and its cost to the public purse and the life chances of the offenders themselves, and above all the damage to society at large and to the victims of crime in particular. That said, changes should be evidence-based, practical and cost-effective. A rehabilitation revolution is unlikely to be achieved on the cheap or by an ideological obsession with the market.
Members will wish to probe the details of the scheme for offenders on short sentences as well as those serving longer terms of imprisonment, to consider the implications of a binary system in which what are described as low to medium-risk offenders are dealt with by one set of providers and high-risk offenders by another, and to discuss the future of our successful probation system, which is effectively to be nationalised and then privatised under the proposals in the Government’s consultation document and their response to that consultation. Your Lordships will wish to examine the case for payment by results and the degree to which all relevant agencies, including local government, health services and the Department for Work and Pensions—to name but three—and the third sector can come together and be involved in the planning and delivery of services tailored to the needs of the individual offender and of the society to which we all want to see them return and in which they can play a useful part.
I begin with the proposals for offenders serving short-term sentences. The lack of supervision and support for this group has clearly been a major contributor to the high rates of reoffending. Welcome though a change in this position is, it is as well to recall that a thought-through policy would address the issues that lead many of these offenders into trouble in the first place. We are familiar with the early symptoms of a significant proportion of those who commit crime: low literacy and numeracy skills, truancy, early parenthood, mental health issues and, yes, poverty. However, in addition to addressing those matters, which involve policies across a range of government and local authority responsibilities and departments, we need to look at the justice system itself. As both Nacro and DrugScope point out in their responses to the consultation, greater use of community sentences would avoid custodial sentences, especially short ones, in the first place while still allowing the effective support envisaged under the Bill.
Experience of community sentences, however, demonstrates a potential problem with the Bill’s proposals to provide a sanction of two weeks’ imprisonment for non-compliance with the sanction order. There is a widespread view that in the existing regime there is an overreliance on this expensive and ineffective approach. The Criminal Justice Alliance suggests that recall to custody should be a last resort but sentence review powers should be available to all magistrates’ courts.
The Bill envisages supervision of all short-sentence offenders. Is this really necessary? To pick an example at random, should it apply to someone convicted of a road traffic offence, possibly combined with perverting the course of justice? There is surely a case for concentrating resources on those offences and offenders to which they are most likely to be relevant; otherwise, in a payment by results system, the low-hanging fruit will be too readily plucked by the providers, to the cost of the taxpayer.
In relation to the split between who supervises low and medium-risk offenders as against high-risk offenders, there are real concerns. These matters, along with payment by results and the radical changes to probation, are not part of the Bill. Therefore, in addition to a binary system of dealing with offenders, we have a binary legislative and policy process. This is an unsatisfactory, piecemeal approach, made worse by a flimsy—and belated—impact analysis.
The National Council for Voluntary Organisations points out that a quarter of offenders change risk category during their sentence, and calls for,
“a clear and consistent process for changing levels of risk”.
Where there is a change of risk, and therefore of responsibility, it calls for a system of managing the transition, including,
“a clear process for the attribution of payments”.
What proposals do the Government have in relation to these matters? Would change to a higher-risk category constitute a reason for withholding payment in whole or in part, or would that happen only in the event of reoffending?
The House may wish to consider amendments to the Bill designed to address some aspects at least of the radical changes to the probation service which form part of the Government’s agenda but are not, as yet, encompassed by the proposed legislation. The need to do so is highlighted by this issue of risk. The category of medium risk would appear to include sex offenders and some of those guilty of violent crime. There must be a concern that such offenders will or may be dealt with, not by the established probation service on release, but by providers in the new and untested payment by results scheme. Given the recent revelations about the soaring number of cautions for what seem to be potentially serious offences, there is likely to be legitimate public anxiety about the issue, especially as offenders can and do move up the risk scale.
The whole question of payment by results raises huge doubts. The Lord Chancellor has form on this; he is a high-risk offender as the progenitor of the staggeringly unsuccessful Work Programme. Why did he cancel the two schemes in Staffordshire and the West Midlands and Wales, and why has the Ministry of Justice refused an FOI request to release details of the evaluation of those pilot schemes? I repeat these questions, which I voiced in the Queen’s Speech debate and to which I have received no reply. Such a radical change should, at the very least, be properly piloted and evaluated before being rolled out. The notion of G4S, Serco and the like extending their growing takeover of the public services is not one with much public appeal, even if occasionally dressed up with a modicum of bid candy in the form of modest third sector involvement. Why will public providers be excluded from working with the low and medium-risk offenders? What will constitute a failed result—any offence, or one of similar or more serious character? If the latter, how is gravity to be measured and for how long is the period of non-offending to be measured before payment is made? What discussions have Ministers held with potential bidders about how the scheme might work? What proportion of the payment will be related to success, however defined, and when will it be paid?
There are also problems with the centralising thrust of the Government’s approach. Local justice is already being undermined by the continuing process of amalgamating magistrates’ benches and court closures, coupled with increasing reliance on full-time district judges. Probation trusts, arguably too large already, will disappear as commissioning will be carried out nationally. How will this help to promote the necessary joint working so obviously required between the justice system in its various manifestations and other relevant agencies? We know that housing and employment are the key drivers in preventing reoffending. Health issues, particularly in relation to substance abuse and mental health problems, of course also loom large. There is a clear need for local authorities, as deliverers of key services and support, to be engaged alongside clinical commissioning groups, the NHS Commissioning Board, police commissioners and the DWP at local level, together with the courts. That will be extremely difficult given the proposal to establish only 21 areas for the contract packages. Moreover, with contract areas as large as this, the opportunity to involve third sector organisations, to which the Minister referred, which so often bring innovative approaches to difficult areas of social policy such as those we are discussing, is likely to be much more difficult. All the promises of involving such bodies in the Work Programme disappeared as rapidly as the Prime Minister’s resolution on the question of a European referendum. What concrete measures will the Government take to ensure that the role of the third sector, particularly small, local organisations, will be secured in the commissioning process? Do the Government recognise the risk that, as the NCVO puts it,
“using a PbR model alone threatens to significantly reduce the potential range of providers”.
That is its split infinitive, please note, Mr Gove, not mine.
Will the Government ensure there are no gagging clauses in the employment contracts offered by providers? For that matter, will the Lord Chancellor lift the gagging order he made on probation officers and court staff in relation to the probation proposals and the interpreters fiasco respectively? Will the Government, as Nacro urges, make quality, and not price, the key criterion when commissioning services, and for how long will contracts run? Who will evaluate performance, and will such evaluations be made public?
There is clearly a host of doubts and questions, not about the Government’s objectives in reducing reoffending, nor about many of the proposals—for example, in relation to drug-testing and the like—but in addition to the matters that I have raised and others will air, including my noble friend Lord Ponsonby, whom I welcome to his first, and by no means, I hope, last, appearance on the Front Bench.
I wish to suggest a new way of dealing with the problems of one particular group of offenders, namely ex-service personnel. I recently attended a presentation about veterans’ courts, now established in every US state. They do not replace the ordinary courts, but in cases not involving serious or violent crime, for which probation would not be an option, and after conviction or a guilty plea in the ordinary court, veterans are offered referral to a veterans’ court, presided over by a judge—it might the same judge as in the court of first hearing—where with a veteran mentor they enter a period of supervision and help to overcome the problems that they both face and perhaps pose. They return to the court monthly and if they fail to co-operate, or reoffend, they are returned to the court of first instance. There is a remarkably high rate of success in reducing reoffending and it is cost-effective—so much so that in Buffalo, New York, I understand, out of 300 cases the success rate in avoiding reoffending was 100%. Given the particular problems of a group of men and women who have served their country, often in dangerous and difficult conditions, and the relatively high incidence of mental health problems and offending with which they become involved after their service, it would be a fitting complement to the military covenant to pilot such an approach.
As the north-east is proportionately the biggest contributor of recruits, and as work is already under way in the region around the mental health problems of veterans, I suggest that a scheme of this nature be piloted there and, if successful, rolled out more widely. If, in a slightly different form, we can have special traffic courts, domestic violence courts and the community court in Liverpool, we should at least see whether what the US has adopted so successfully could work here. That would make in my view a potentially useful addition to carrying out the intentions that the Government have expressed and from which there would be no dissent in this House.
However, we are in a peculiar position of having a Bill before us that does not deal with many of the significant problems to which I have referred and other noble Lords may wish to address their remarks, with a wholly inadequate series of impact assessments and a great paucity of detail about how matters will work in practice. I am afraid that this is fairly consistent with the way in which Parliament and this House in particular have been treated over various legislative matters. Perhaps it is not too much to suggest that, when it comes to policy-making, the Government are in need of a rehabilitation revolution.
Lord McNally
My Lords, first, I thank the noble Lord, Lord Ponsonby, for that measured response. I thought his peroration wandered into Beecham territory, but for the most part it was moderate and constructive, and for that I am most grateful. I see him as a kind of David Beckham figure, coming to dazzle us on the Front Bench and then all too soon going away again. However his participation today and, I hope, in Committee and at other stages of the Bill is now guaranteed.
It is very difficult responding to so comprehensive a debate. It is one where Governments can never win. We pilot, analyse and consult, and then we run out of steam. If we push ahead with radical ideas, we are going too fast and failing to consult. I am not quite sure how to respond to the tour de force of the noble Lord, Lord Ramsbotham. He ended on “The Tempest”, but his message was more from “Life of Brian”. He is quite sure that the Secretary of State is,
“not the Messiah, he’s a very naughty boy”.
One rather more serious point, which I make in all comradeship to both the noble Lord, Lord Ramsbotham, and my noble friend Lady Linklater, is that sometimes if a department makes any move at all, they are so precise about what is wrong that you lose all sense of whether they are supportive of at least the attempt. Of course, there are questions about so radical and innovative a policy. I will try to cover some of them in this reply and I will also look forward to a very thorough examination in Committee.
Since he was one of the last speakers and his name is at the top of my pile of notes, perhaps I may thank my noble friend Lord Bates for his intervention. It gave me a breather and he made a very important point about education. We will be bringing forward thoughts on education and its place in the youth sector, but it also has an important role to play in rehabilitation in the adult sector. It ties in with a point that is often made by the noble Lord, Lord Ramsbotham, about mentoring and the benefit of initiatives such as the Toe by Toe project, whereby literate prisoners help illiterate prisoners to master reading and writing.
I will try to cover the major points in my response and note some of the key ideas. I will follow up the idea from the noble Lord, Lord Beecham, on ex-service personnel because there is growing concern about how many of our ex-servicemen seem to end up in the criminal justice system as offenders. We will look at ideas that have worked and we will certainly follow them up.
A number of noble Lords expressed concern about whether there will be scope for small providers. We intend to put in place market stewardship arrangements so that the smaller voluntary and community sector providers can bid to be a prime provider or to be a partner. We are running a two-part £500,000 grant to support VCS organisations to overcome the barriers to participating in the rehabilitation reforms and, as has been said, this morning my right honourable friend the Deputy Prime Minister announced further funding. I should also like to follow up with my noble friend Lord Marks the idea of a chartered institute of probation officers or some such body. That is something that sits well with the idea of a National Probation Service. I have said many times from this Dispatch Box that I have great admiration for the probation service and at no time have I suggested that it is the fault of the service that we have a 56% rate of reoffending, or indeed any other percentage. The service does an excellent job. What we are doing here is not a condemnation of the probation service but an attempt to restructure provision in a way that gets us better value from the money that we are making available for rehabilitation. I take the point made by a number of noble Lords, including the noble Baronesses, Lady Howe and Lady Healy, about women. It is something that we may explore in Committee.
I will deal with some of the broader points made by the right reverend Prelate the Bishop of Newcastle later, but I do not think that ever in my political life have the words, “Public is bad, private is good”, passed my lips. It is an absurd assumption and is certainly not part of the motivation behind this Bill. However, diversity, variety and flexibility are good, and those are what we are trying to promote in what we are doing. I will deal with the matter of breach, raised by my noble friend Lady Berridge, later, but perhaps I may flag up that I have visited one of the Clink restaurants, and very good it was too. They are a real and functioning example of rehabilitation; the hospitality world is one in which the range of skills required matches well with those of prisoners.
I have noted the point made by the noble Baroness, Lady Armstrong, that the previous Government themselves examined payment by results and were none the worse for that. As we have pointed out before, much of this restructuring depends on the 2007 Act. I am not scoring points here; I just want to make the point that it has been a direction of travel for a long time in both prisons and probation because, as has been said a number of times, the private and voluntary sectors have been involved in rehabilitation for a long time. I have seen provision by St Giles Trust, Turning Point and others that demonstrates that. We want to look again at social investment bonds. As the noble Baroness said, they could and should be a major long-term part solution to some of the issues we face. However, I acknowledge her experience and take her advice about the need to find a long-term basis for such investment.
My noble friend Lord Dholakia let it out of the bag that he is my long-term mentor on criminal justice matters, and I hope that I am all the better for that. He made the important point that we should not confuse voluntary with amateur. The voluntary sector has a great deal of professionalism to give us in this area. I hope also that we can press forward on the Rehabilitation of Offenders Act 1974, and we certainly intend to do so as soon as possible.
I take on board the warning from the noble and learned Lord, Lord Woolf, that we should proceed with caution and about the danger that what we are doing will somehow legitimise and justify an inflation in short-term sentencing. I do not think that will happen. As the noble Lord, Lord Ponsonby, recognised, we are talking to magistrates and the Sentencing Council with this very much in mind. The noble and learned Lord also made the point that this kind of attempt has been made before with custody plus, and we will try to learn some of the lessons from that.
As well as raising the issue of women in prison, which I am very willing to explore further in Committee, the noble Baroness, Lady Healy, warned against setting people up to fail. I see that as a proper warning and one that we will take to heart when putting these reforms in place. I was glad that my noble friend Lady Linklater welcomed the emphasis on mentoring. She, too, expressed concerns about the probation service and mentioned that it is now 100 years old. I do not believe that we will lose the skills base through these reforms. They will be redeployed across the sector. However, I will say quite frankly that I believe that a National Probation Service along the lines that we are contemplating will have far more status and influence on policy than the service did as, if I may say, the poor relation of NOMS within the Prison Service. Under our new structure, the National Probation Service will have within NOMS direct reporting to the Secretary of State, and I think that that is an advance on what has gone before. My noble friend Lady Hamwee also welcomed mentoring, and I take to heart the importance of getting a complete buy-in to this from prison staff.
I suspect I shall run out of time for all the other issues. We are trying to give discretion to the courts when they are sentencing. Applying the provision to all offenders then setting the appropriate level of supervision is a much more practical approach than deciding at the time of sentencing not to supervise an offender and then realising too late that they actually pose a risk of reoffending and need supervision. A blanket, one-size-fits-all type of supervision will not be applied; there will be proportionality and judgment in taking this forward. The noble Lord, Lord Beecham, gave an example of somebody who has been in prison for an offence that is unlikely to be recommitted and has a minimum requirement for supervision: that is exactly what will happen.
My noble friend Lord Dholakia, the noble Lord, Lord Beecham, the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Healy, spoke about the danger of raising the threshold for imposing custodial sentences. The Bill is focused on improving rehabilitation for those whom the court decides need to go to prison. We have already made changes to the community order in the LASPO Act and the Crime and Courts Act to ensure that sentencers have tough community sentences at their disposal. The fact remains that, as the noble Lord, Lord Ponsonby, said, some people need to go to prison, even if only for short periods. The current custodial threshold is already high. The court must not pass a custodial sentence unless it is of the opinion that the offence is so serious that a final community sentence cannot be justified. Other matters on the details of application would be better left to be dealt with in Committee.
The noble Baroness, Lady Berridge, asked me specifically whether 14 days committal for breach activates its own 12 months of supervision. It does not: committal is the ultimate sanction for breach but the objective is to get the offender back on to the original rehabilitation programme. That also covers how we intend to extend this to 50,000 offenders and apply it with a sense of proportion in each specific case.
On the question of women, we have, through my honourable friend Helen Grant, taken on a women’s advisory board and will be taking forward proposals on female offenders. I welcome the opportunity to discuss this in Committee.
A number of noble Lords, including the right reverend Prelate the Bishop of Newcastle, the noble Lord, Lord Beecham, my noble friend Lord Dholakia and the noble Baroness, Lady Berridge, raised concerns about the participation of small charities. Our reforms will open up the probation service to a far wider range of potential providers. We want to encourage partnerships between voluntary or charitable organisations and between VCs and the private sector. In reply to the right reverend Prelate the Bishop of Newcastle about faith group involvement in rehabilitation, I recently went to Liverpool as a guest of the right reverend Prelate the Bishop of Liverpool and saw some of the projects being run there. The noble Baroness, Lady Healy, may be interested to know of Adelaide House, a very interesting project for the resettlement of women offenders. I want to put on record my appreciation of all the faith groups, which already have a network and a committed flock who readily make themselves available for rehabilitation work. That is something we want to work with and build on. In St Albans and Norwich, which I have visited in the past couple of years, the cathedrals are being used as centres for getting the various groups together on projects that work.
Lest I get into trouble for going on too long, I will just deal with the question of payment by results. Our payment mechanisms will ensure that providers have to work successfully with all offenders, including the most prolific and hardest to help, if they are to be paid in full. There will be a fixed fee for service, ensuring that they deliver the sentence requirements, and licence conditions for every offender. The remainder of their payment will be dependent on the reductions they make in reoffending. To be paid in full, providers will need to achieve an agreed reduction in both the number of offenders who go on to reoffend and the total number of offences committed by those in their cohort. So they cannot just focus on the easy wins; they will have to work with the most prolific offenders and keep working with those offenders who have already reoffended. We will be developing the details of our payment mechanism in discussions with providers and practitioners. I am sure that will be developed in Committee.
Lord Beecham
Could the noble Lord clarify whether it is the intention to bring those details back to the House or to Parliament for approval? In what way will there be parliamentary scrutiny of the detail?
Lord McNally
Those are matters of contract with the providers, but the noble Lord can probe me further on that in Committee, when I will try to give more specific answers.
It does not surprise me, given the speakers list today and the range of experience and expertise on view, that a lot of questions have been asked. I hope we can delve deeper into this in Committee. I do not accept that this is not worth pursuing. Most people have welcomed the objectives and, as I have told the House before, we must accept that, in these straitened times, the department cannot call on other resources to fund ambitious programmes. However, we are spending just less than £1 billion on the wide range of rehabilitation services. We have heard about holistic approaches and making sure that we have buy-in from other departments and from local government; these are all important to its success and I passionately believe it is worth trying. I understand the dangers but, in the end, you can spot so many dangers that you are paralysed. I do not believe that is the right approach. We should press ahead with this, let this House use its expertise to examine it in detail and see if we can put in place a piece of legislation that will give the framework to bring in ideas, flexibility, innovation and value for money in an area where there is a great deal of common agreement about objectives, as today’s debate has shown. As we take this Bill forward, our job is to see if we can tease out the practicalities so that it is also effective. I beg to move.
Bill read a second time and committed to a Committee of the Whole House.
Prisoners: Indeterminate Sentences
Lord Beecham Excerpts(11 years, 7 months ago)
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Lord McNally
I understand that almost all IPP prisoners now have a managed programme to help them prepare for release. That should be part of sentence planning. But, again, I freely acknowledge that in some cases prisoners have been moved for other reasons and then find that they cannot complete the relevant courses. We are trying as best we can to iron out of the system what the noble Lord referred to as a Catch-22 situation so that prisoners can qualify, but to leave with the Parole Board the overriding assessment of whether they are suitable for release or whether a risk remains.
Lord Beecham
My Lords, what is the Government’s estimate of the number of prisoners to whom the judgment in the European Court of Human Rights case of James, Wells and Lee v UK applies? Have the Government estimated the cost of providing sufficient resources to comply with the requirement to ensure that prisoners have an opportunity to progress and to be properly assessed for release on licence?
Lord McNally
I am not sure of the number of prisoners to whom the judgment applies, but cases are being taken. It may be of interest to hear that two of the three prisoners involved in that case are now back in prison due to breaching their terms. We are being very careful to make sure that the system is flexible enough and effective enough to allow prisoners to earn—that is the reality of it—their release. However, we have to consider this issue in the context of prisoners who were given this sentence, when it existed, because they posed a threat to the community. It is for the Parole Board to assess whether they are fit for release.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013
Lord Beecham Excerpts(11 years, 8 months ago)
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Lord Phillips of Sudbury
My Lords, the speech we have heard from noble Lord, Lord Bach, is very sobering, and although he put it forth in no spirit of partisanship, some of the language was, if I may say so, overcoloured. I do not think that to accuse the Government of spite is reasonable, but I accept that for us apparently to deprive those covered by the Motion, who have suffered at the hands of a First-tier Tribunal where there has been an error of law in the decision, seems, to accept the noble Lord’s word, perverse.
I used to have an office overlooking the Old Bailey, and I never forget the motto over the portal of the Old Bailey. It reads:
“Defend the children of the poor & and punish the wrongdoer”.
If ever there is a category of cases where the children of the poor are likely to be engaged, it is this one: welfare law cases.
I shall listen very carefully to what my noble friend has to say in response to the case put forward by the noble Lord, Lord Bach. My mind is not finally made up, but I must be frank with my noble friend. This seems an extraordinary error of both judgment and justice. We boast endlessly in this country about our justice system, on the whole with reason. I cannot begin to get my head around denying people who have suffered a reverse in the welfare tribunals legal advice on a point of law. I hope that my noble friend will have a compelling argument to bring forth. In particular, it would be very helpful for the House to know just what the cost is, or would be likely to be, if the provision were withdrawn. I very much hope that if the Minister cannot give a satisfactory riposte, the Government will think again, even at this late stage. Sometimes numerically small issues mark a culture, a society, a Government, and this seems to me to be laden with that significance.
Lord Beecham
My Lords, this debate consists of two parts. The first is the regret Motion tabled by my noble friend Lord Bach, which deals with a particular decision. I do not want to say any more about that other than that I entirely support the magisterial rebuke that he administers not to the Minister, who of course does not have a free hand in these matters, but to the Government at large for denying a modest concession to about 300 people, the cost of which, to refer to the question asked by the noble Lord, Lord Phillips, must be minimal, in what can only be described as a governmental fit of pique.
Having said that, I turn to the second more general issue that is encompassed in the broader merits regulations and the position of welfare law claimaints in general, who are significantly affected by the changes that are now under way. Hitherto, about 30,000 people have benefited from welfare legal aid and advice, usually, although not exclusively, provided by voluntary organisations, notably the citizens advice bureaux. I place on record my gratitude to the bureaux for furnishing the information that I am about to relate, in part at least, to the House. The situation now is that instead of 30,000 people getting that advice, 3,200 will receive advice and support in respect of Upper Tribunal matters only. There will be no assistance in their case at the first tribunal. There are two aspects to this, a supply side and a demand side, and I shall begin, rather perversely, with the second, which is the demand side.
We are dealing nationally with a group of significantly disadvantaged people. I am informed by the bureaux that some 68% of current welfare legal aid users have a disability. In addition, there will be many with literacy and other problems and vulnerabilities; indeed, they are a significantly high proportion of those who seek advice. They seek advice about their entitlement, but also about the processes that are, to put it mildly, complex. I can illustrate that with one of a number of cases the bureaux have briefed me and my noble friend on. I shall pick the shortest so as not to delay your Lordships any further than necessary.
In one case, a Welsh bureau advised a 57 year-old woman with multiple disabilities who received employment and support allowance and council tax benefit. She made a claim, did not seek advice when completing it and as a result underestimated her needs, in particular her mental health issues. Here, again, I underline the point about the degree of vulnerability of some of these claimants. She attended a medical assessment and was judged to have scored no points. She appealed that, attended a First-tier Tribunal in 2012 and was awarded nine points, but was not awarded any help with the mental health conditions, despite a letter from a GP saying she had a long-term mental health condition and despite the fact that the letter said she was suicidal some months before that decision. The bureau then advised her on looking for options for appealing the decision to the Upper-tier Tribunal. She would have had no help at all from the bureau in the present circumstances if the bureau’s capacity to give it was limited, as it is likely to be.
In effect, legal aid and advice is now limited to the second stage, the onward appeals tribunal. This is not consistent with the intention Parliament originally expressed in respect of first-tier cases where at least basic advice and support on a number of procedural issues, such as a request for a statement of reasons from a first tribunal, seeking leave to appeal from the first tribunal and other aspects—lodging documents and so on—should be covered. Unless these stages are included within regulations, it is unlikely that anybody seeking to appeal, assuming they know of their rights to appeal, would be able to progress from the first tier to the second tier unassisted. That is the second stage.
I now turn to the supply side. There is a growing crisis in the sector. There is no doubt about that. Citizens advice bureaux and other organisations are suffering significant reductions in funding from national and local government, the latter of course having been awarded a further 2% cut in government grant in the recent Budget, so things are not going to get any better for some time in that context. The problem now is that bureaux are disposing of staff. My bureau in Newcastle has had to rid itself of the equivalent of three and a half full-time legal advisers, the bureau in Gateshead is closing, and this pattern is being repeated all over the country. It has to be said that some bureaux continue to provide pretty much a full service, but increasingly the pressure is resulting in a substantial decline in the capacity of the organisations to meet the demand, which is likely to rise, not least with the Welfare Reform Act changes that are about to strike hundreds of thousands, if not millions, of people.
The process now is that the contracts to provide this service for the only part that is to be covered by legal aid, the Upper Tribunal, are being let in a very curious system. I did not know about this until a couple of days ago. Apparently there are to be only four areas in which these contracts will be granted for the whole country. I am not sure whether Scotland is included, but certainly England and Wales are divided into four areas under which a contract will be let. A tendering process will commence and it is intended to be completed in October.
What is to happen in the mean time, between April and October, given the pressure on the budgets of the CAB and other advice agencies, remains to be seen, but there must be a significant worry that there will be difficulties in dealing even with appeals to the Upper Tribunal pending the allocation of contracts. Certainly there is a good deal of concern in the sector about that, because in the mean time several hundred welfare law contracts, which are not currently distributed on the basis of just four contracts for the whole country, will come to an end. So there is a really significant problem immediately on the supply side.
The four areas—it is clear that Scotland is not included—are the north, the Midlands and the east, the south-west and Wales, and London and the south-east. These are huge geographic areas. The CAB says that the contracts will require that:
“The applicant must be able to provide face to face services from locations and access points across the whole area, as well as delivering remote advice”—
that says it all, really—
“and interacting with the civil legal aid (CLA) helpline; no subcontracting is submitted and the applicant must be a single individual”.
A very strange market is going to develop in which only four organisations will be involved. One imagines that organisations such as Group 4 and Atos, which have covered themselves in glory in recent years, will be rushing forward to supply this important and sensitive service.
The contracts themselves are very limited. For London and the northern procurement areas, only 1,035 cases are assumed to be included in the contract. The other two areas have 600 and 90 each. That is minimal in the face of the likely demand. It certainly does not take us beyond the current 3,200 people who get legal aid and advice for the Upper Tribunal. There is no flexibility in that. If you have only that small number of cases you will have only two or three specialist advisers covering areas as vast as those that I have described. Remoteness is indeed going to be evident. How on earth can two or three people sensibly look to face-to-face contact with appellants over an area as wide as that? Yet that is what the contracts are heading towards.
Will the Government look again at support for the advice sector, and the contract in particular, first, to ensure that services are maintained on the present basis between 1 April and the date on which the new contract comes in? That will be difficult because people will be looking for alternative employment. If the contracts are going to involve only 12 people nationally, people who are currently engaged locally on this kind of work are going to be looking for other work. I hope that the Government will provide some temporary support at least for the continuation of that service. Secondly, will they look again at this ridiculous pattern of four huge areas served by a handful of people? I cannot believe that the Government seriously think that this is the way to support people of the kind that the CAB describes, which I related to the House, who desperately need personal contact if they are to have their cases heard.
Of course, we are not voting on the regulations as such. I believe that the Minister will be sympathetic to the issues I have raised. I hope he will take this back to the department and that we can have some changes: first, some reconsideration, preferably with proper discussion with the sector about how it might work; and, secondly, a review of whether the contracts should go ahead on the present basis. I certainly hope that the Government will have second thoughts about this matter.
Civil Legal Aid (Procedure) Regulations 2012
Lord Beecham Excerpts(11 years, 8 months ago)
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Lord Beecham
My Lords, I am pleased to join my noble and learned friend Lady Scotland and the noble Baroness, Lady Grey-Thompson, in expressing concern and regret at the situation which potentially confronts so many people in both the categories to which these Motions refer. The Motion of the noble Baroness, Lady Grey-Thompson, refers specifically to,
“legal aid services for disabled persons”,
and goes on to state that,
“the category of ‘exempted person’ is defined too narrowly”.
I am sure she will agree that, hugely important though the needs of disabled people are, other people without a disability as such will also potentially lose out under the new processes. I refer in particular to the concerns that she expressed about the gateway as opposed face-to-face advice. That will be a serious matter.
By sheer coincidence, looking at a news programme this morning, I saw a report of a benefit claimant—I think he was from Barnsley; it was somewhere in Yorkshire at any rate—who has been sanctioned for not applying for a job, but the basis of that was that he had not applied online. Apparently, it is necessary in that area to apply online. The claimant has never used a computer; he does not know how to use a computer; he was not, incidentally, given any advice about how to use a computer by the jobcentre; and he was sanctioned. That is a different context, but it underlines that, despite the fact that many of us are up to a point familiar with modern technology—I do not profess any particular expertise myself in this area—many other people are simply not used to it. That is particularly true of those with perhaps less of an educational background and less experience of, for example, conducting financial transactions in that way. More generally, they might be limited in their vocabulary or not speak English as a first language, as the noble Baroness pointed out, or in other ways find it either impossible or difficult to access advice online.
The noble Baroness made a valid point as well about third-party representation. It will be interesting to hear the Minister’s views on how secure and effective that is likely to be as there are clearly concerns about whether a third party can effectively represent someone remotely. The Minister rather casually dismissed the question of remoteness in our previous debate. The noble Lord shows his dissent. Well, perhaps I am being unkind to him and I withdraw that. However, he did seem rather to play down the potential problems of physical remoteness from the source of advice. Those of us who professionally or otherwise have engaged with people over the years in our various capacities—as lawyers, as people in the voluntary sector or as elected politicians—will know that face-to-face contact is very important and by no means everyone has access to that kind of remote-access technology.
There is another question about remote access that I want to put to the Minister. At the moment the system is that an applicant will make a telephone call and the person at the other end of the line will offer to call back. That seems to be an unnecessary complication. First, the call-back method is not always easy or reliable as there may well be problems in returning a call. Secondly, the initial cost will fall on the applicant. Will the Minister undertake to look at making this a freephone service rather than a system where one has to pay and then, one hopes, receive a call back?
I am concerned that serious problems in relation to the gateway and the whole area of access will be experienced over the next few months. I am sure that the Government will be monitoring this, but it would be good to know a timetable within which they will look at how the system is working and how they propose to do that, whether nationally or on a regional basis.
In relation to my noble and learned friend’s important Motion on domestic violence, I begin by referring to an interesting observation made by the president of the Family Division, Sir James Munby, giving evidence to a Public Bill Committee in the Commons on 5 March. Addressing the issues of legal aid in family law, he said:
“Coming back to the specific question that we are concerned with today, everybody who is involved in the family justice system is necessarily very concerned about what will happen in four weeks’ time, when legal aid effectively withdraws from private law proceedings. We are, I am afraid, unprepared for that. When I say ‘we’, I am not talking about the judges; I am talking about the entire family justice system. We are prepared for the changes to public law that are being phased in over the next 12 months, but we are desperately unprepared for what is going to hit us in four weeks’ time”.—[Official Report, Commons, Children and Families Bill Committee, 5/3/13; col. 31.]
That is a remarkable statement by the president of the Family Division, and it would be interesting to know what response the Government make to it.
It seems that, potentially, chaos will strike in this very important and sensitive area of law, not in four weeks’ time but next week. Judging by the experience of some other government changes to our legal system—for example, the issuing of proceedings out of a single county court, which happened last year—we can expect considerable difficulties. That has been a most unhappy episode, which is still not totally resolved. Of course, this now becomes an area not simply of ordinary court proceedings, but very sensitive, difficult and often urgent matters that affect people’s lives very closely—the lives of vulnerable people, in particular women, and of course children. I therefore hope that the Government will pay some attention to the very important strictures and concerns of the president of the Family Division, Sir James Munby.
There are a couple of other issues on which it would be interesting to hear the Government’s present views. Reference was made by the Minister to the cost of obtaining evidence from GPs. It is thought that this might amount to some £50 or £60. The Government may well be looking at alternative forms of evidence that might be suitable, but as I said, this process starts in a week’s time. It would be interesting to learn how far the Government have got in producing a suitable procedure for people to follow. This is a significant issue because almost by definition many of those who may want to seek legal advice and take legal proceedings —now without the benefit of legal aid unless they can prove in the context of domestic violence that they are exempt—will find it very difficult to find £50 or £60 to pay their GP. I understand that the Government are in discussion about this with the BMA, which is apparently unhappy, as a matter of principle, about the expectation that family doctors, and perhaps other doctors, should be producing reports at all for this purpose, while the Royal College of General Practitioners has taken a more constructive attitude. Can the Minister update us on where we are in that context? I can understand the situation where a GP is perhaps a family doctor to both parties and therefore might be in a position of some conflict, but in general it ought to be almost axiomatic that a doctor would be prepared to give evidence—no doubt brief evidence—which might assist a woman, or man for that matter, who is claiming that he or she has suffered domestic violence.
The other aspect is that the whole rationale of the Government’s approach to family law is that mediation is a better answer; it is less formal and less expensive. I have said before, and I repeat, that in my experience as a practising solicitor who did some family law work, it is all very well to talk about mediation where there is a rough equilibrium in the position of the parties in terms of their psychological strength or financial resources. It is rather different in many cases where one party is so much stronger than the other. Therefore, mediation is not necessarily the best or only way. In any case, it has always been available. The other aspect is that it would appear that only 5% of family law cases are contested. In other words, matters are being resolved without ending up in court. The support of qualified legal advisers is essential to secure those outcomes in general in terms of family law. But in particular it is important that people should be adequately represented where domestic violence is part of the scene. As my noble and learned friend pointed out, the conditions under which such victims would be able to be categorised as exempt and obtain legal advice are, on the face of it, certainly too narrow. At the very least I hope that the Government will undertake to review how things are going, sooner rather than later, because, as my noble and learned friend pointed out, we are talking potentially not only about serious injury but about death—about people, mostly women, being killed as a result of domestic violence.
Obviously the Government do not want that to happen. Of course they do not. However, there is a danger that it may happen if the Government do not respond quickly and effectively to any issues that arise in regard to obtaining access to proper advice and representation in these highly sensitive areas. In those circumstances, if the noble Baroness and my noble and learned friend intend to test the opinion of the House, from the opposition Front Bench I will certainly be calling on colleagues to support them.
Lord Beecham
My suggestion was that a freephone system might be adopted. Have the Government considered that; if so, will they consider it again?
Lord McNally
The noble Lord is quite right: the number will not be a freephone number. I will inquire whether that was considered. The point is that it is minimalist. Just to put it on the record, you can use the 0845 3454345 number and immediately ask for a call-back, so it is not that big a hurdle.
I have taken a lot of the time of the House. I have tried to answer some important questions. I hope that, in doing so, I have conveyed that we are dealing with issues of shared concern about protecting the most vulnerable in our society.
Throughout both these debates today, we were faced with making tough financial decisions, but I believe we have made them in a way that targets resources at the most vulnerable in the way that would be most effective. I would regret it if the Motions were pressed. I will note the opinion of the House, but I go back to the growl of approval that greeted the noble and learned Baroness, Lady Scotland. It is an approval that I share: we have got to make sure that in our approach to legal aid and the broader issues that encompass both, our aim must be to give priority to attacks on the broader causes of domestic violence and to ensure that there is legal aid available in family law. I believe that if noble Lords look at the way that women will qualify for legal aid, it will be very difficult to say that those provisions are not there.
On aid for issues of disability, I hope I have clarified some of the concerns of the noble Baroness, Lady Grey-Thompson. I hope she will go to Hinckley and see the gateway in progress. I can assure all sides of the House that as far as I am concerned, monitoring will start on day one to see what the impact of these changes will be. In that respect, I hope the noble Baroness and the noble and learned Baroness will not press their Motions.
Prisons: New Prisons
Lord Beecham Excerpts(11 years, 8 months ago)
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Lord McNally
My Lords, the right reverend Prelate is correct, and that is why new prisons are designed to be able to facilitate opportunities for work, education, training and rehabilitation. That is the benefit of a new-build policy.
Lord Beecham
My Lords, will the Minister ensure that in addition to being environmentally sustainable, new prisons are located in places that are not too far removed from the places whence the prisoners have come and where they might find jobs after their release?
Lord McNally
My Lords, as part of the rehabilitation revolution we are looking at a release programme for prisoners whereby they can be located in a prison that gives them a chance for suitable training and, as I think I have mentioned before, with an emphasis on “through the gate” support after they leave prison, if possible in locations close to where they are going to live thereafter.
Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013
Lord Beecham Excerpts(11 years, 8 months ago)
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Lord Beecham
My Lords, yesterday in this Committee we debated a report from the noble Lord, Lord Goodlad, in relation to the Government’s procedures for consultation. Considerable concern was expressed by the committee that he chairs, shared by those of us who spoke in the debate, who were either members of the committee or, as in my case and that of the noble Earl, Lord Lytton, not members of the committee, that the period for consultation had been arbitrarily changed by the Government last year. Quite apart from the merits of today’s statutory instrument, today’s business confirms the criticisms that were made about the consultation period. As the Minister has pointed out, consultation on these changes took place in only a four-week period, beginning towards the end of October, before the newly elected police commissioners, for example, were even elected. So all 43 of them have had no opportunity of commenting on these changes in an area in which it might be thought that they have a significant interest. It clearly crossed nobody’s mind—and I am not blaming the Minister for this—
The Deputy Chairman of Committees (Lord Geddes)
My Lords, there is a Division in the Chamber. The Grand Committee stands adjourned for 10 minutes to recommence at 5.44 pm.
The Deputy Chairman of Committees
It is now 17.44. His Lordship was in full flow, and perhaps he would like to continue.
Lord Beecham
My Lords, I will. I was making the point that this case exemplified the arguments that are being made about the Government’s defective consultation procedure, but that is a preliminary point and does not go to the substance of the matter, and I do not expect the Minister to accept any responsibility for what seems a flawed process. I suspect that it is not a matter to which he would have given any material consideration.
On the other hand, the Minister will be aware that there is considerable concern about the number of cautions now being offered in lieu of possible prosecution and a feeling that this is to some extent being used by some police forces as a device to, shall we say, depress the level of recorded crime. There is at least that concern. Whether it is justified is another matter, and I would not for a moment suggest that all police forces are succumbing to that temptation, but there is a feeling that there is an issue, and one has to bear that in mind as we look at extending the system in the way that these proposals do. A cynic might indeed wonder whether this might be another way of reducing the criminal legal aid bill, about which the Minister and his colleagues are so exercised, but heaven forfend that I should be susceptible to such a cynical standpoint.
However, there are a number of points to be raised about these proposals. In terms of conditional cautions, they shift the responsibility entirely on to police officers, at least if they chose to exercise the power given to them. Will the Minister indicate what follow up there will be in terms of consultation about the way the new system is working? Now that we have elected police commissioners—which is not something that I or my party have ever favoured—presumably they will be involved in any consultations, as chief constables would be. Will the Minister indicate whether it is intended to set up a process to monitor the way the new powers are being used and how frequently those consultations will be carried out?
There is also a question about the guidance which the Director of Public Prosecutions is to issue. Once again, we have secondary legislation without the accompanying guidance on how matters are to be used. That is a most unfortunate defect in the procedure. The potential problem is that this new system will be carried out in different ways in different areas. Surely there ought to be a degree of consistency, which, no doubt, the guidance would seek to promote, between what happens in different police authority areas. Again, the question arises of what steps the Government will take to ensure as far as possible that there is a degree of consistency.
On foreign defendants—of course, they will not be defendants because there will not be a prosecution, so let us call them foreign offenders for the purposes of the debate—I invite the Minister to respond to the possible doubt that this may be a convenient way of dealing with foreign offenders without the expense of a trial, but possibly at the expense of visible justice so far as victims are concerned. Will the guidance indicate the level of offence that it would not be deemed appropriate to be the subject of a conditional caution, with the condition of deportation attached to it? Deportation may well be desirable, but it may also be desirable for an offence to be dealt with through the courts in the normal way.
We do not oppose the principle of the order. It is certainly worth pursuing the option of conditional cautions but, as the Minister recognised, we have some reservations about how the system might work in practice. It is new, and I hope that we can have an assurance that there will be a proper review of progress, perhaps in a year or two, to see how the system is working in practice and, in particular—I repeat—whether there is consistency in practice across the country which one would think would be desirable, if only to retain public confidence in the new process. I reiterate the request that in future guidance that will be crucial to the operation should be available for consideration before the secondary legislation goes through your Lordships’ House and the other place.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Beecham. As usual, he is constructive in his questioning and I will try to be equally constructive in my responses. I am informed by my noble friend Lord Wallace that there was indeed a good and robust debate about consultation in this Room yesterday. Where I cannot follow the noble Lord, Lord Beecham, is in his description of consultation in this case as being either defective or flawed. It was short but effective. We were working against a pretty tight timetable to deliver the LASPO reforms in place and on time.
I take the point that there was not perfect synergy between the coming into office of the new police commissioners and our consultation, but it was interesting that more than half the responses to the consultation came from police forces or ACPO. As I indicated, the overwhelming response to the consultation was favourable to what we are trying to do. The noble Lord, Lord Beecham, was right to raise the question of consistency in the application of these proposals. That is part of a broader approach that we are undertaking at the MoJ to try to make sure that statistics about policing and courts are more widely known so that we can see the effectiveness of any such measures and any variety in their implementation.
We are supporting the Association of Chief Police Officers in its work to develop local scrutiny arrangements for out-of-court disposals. These will consist of a retrospective look by a range of criminal justice professionals at how an area uses these disposals, and it will look at individual cases to see whether they raise any training needs. We are working with the senior judiciary to establish how we harness the unique knowledge and experience of magistrates in these arrangements.
The noble Lord, Lord Beecham, also asked whether there was a kind of inflation in the use of out-of-court disposals. It is true that there was a significant increase after 2007, but that was not at the expense of convictions, the figures for which have remained broadly stable. Part of the reason for the increase was targets imposed by the previous Government that created an incentive for criminal justice agencies to criminalise low-level offending by administering cautions where otherwise they may have taken no further action. After those targets were replaced, the number of out-of-court disposals since 2007 has declined by about 43%.
The noble Lord asked for which offences conditions for foreign offenders will be available. The foreign offender conditions will be available for the same offences as the other types of conditions. However, it is right to make these conditions available for more serious offenders—for example, where the likely sentence, if prosecuted, would be a period of imprisonment. We believe that for foreign offenders who have no right to remain in the UK and admit to committing certain offences, the public interest is better served by administering a caution and promptly removing the offenders from the UK, rather than prosecuting and potentially imprisoning them at the taxpayer’s expense, only to remove them from the country once the sentence is completed. Where the public interest requires it, serious offences committed by foreign nationals will, of course, continue to be prosecuted.
The noble Lord raised the question of the DPP guidance. This will set out the circumstances when the police can offer a conditional caution and when they should refer the matter to the CPS. The police will be able to offer a conditional caution for a summary-only or triable-either-way offence but the decision in an indictable-only offence should be authorised by a prosecutor. In a case of whatever seriousness, the police can seek advice from the CPS on the appropriate disposal decision. This brings conditional cautions into line with the current situation on simple cautions.
On the question of the timing of the DPP guidance, I agree with the noble Lord. It is unsatisfactory. If I was in his place, I would grumble. Parliament is right when it says that it has not been given the whole picture on these things. I am asked to assure him that one of the advantages of delaying is that we will be able to take this debate into account as we put the guidance forward. I can already see how convinced the noble Lord, Lord Beecham, is by that bit of sophistry; I sense waves of a feeling of treachery from behind me. As a parliamentary practitioner, I think that it is far better when Parliament gets the whole picture when making a decision. I also appreciate the pressure that we are putting our officials under.
Returning to the matter of foreign offenders, we will, of course, also take into account the views of victims. However, I think there is a general feeling that a sensible way of dealing with these offenders will be to get them out of the country and not put the taxpayer through the cost of prosecuting and possibly incarcerating them. We will keep these matters under review. The aim is to provide a consistent system, based on a clear framework of guidance, while giving flexibility to the police to make common-sense decisions. I hope that we will have an opportunity to gather together the results of the ACPO research, to which I referred, and perhaps at some stage publish it to promote further discussion. As the consultations indicated, there has been a broadly favourable approach to it. The points about ensuring consistency and proportionality, raised by the noble Lord, Lord Beecham, are well taken, but I still have no hesitation in recommending the order to the Committee.
Lord Beecham
Will the Minister confirm that the review will provide information not only on the number of orders made but on the number in respect of which breaches have occurred? In fact, it might be helpful to have a picture of what is happening in terms of breaches of the existing conditional order system, not, obviously, immediately but as part of that review process. Will he agree to ensure that that takes place?
Lord McNally
Yes, I readily agree to that. As I said before, one of the things that are very central to MoJ policy is the gathering of relevant statistics. The noble Lord talked about breaches. That is a very relevant statistic in terms of seeing how effective this measure is. We want to make use of the ACPO research and the information that the MoJ is gathering to analyse the measure’s effectiveness. As I say, I readily agree to that.
Amendments to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2013
Lord Beecham Excerpts(11 years, 8 months ago)
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Lord Beecham
My Lords, I am sure that the Minister would join me in congratulating the noble Baroness on using her professional expertise to fill the gap in the Tribunals Service for so long, consistent with her other cavity filling over the years. She raised an interesting topic—that of costs. Given that we now have a range of tribunals being brought together, could the Minister indicate whether there will be a uniform charge or whether it will be differentiated between the different categories with which the new property tribunal would deal? As she implies, that could potentially be quite a significant issue. It also raises in my mind a question about legal aid, which of course is now not available for First-tier Tribunals. Could the Minister give an assurance that nothing in these orders will diminish access to legal aid or advice over and above that which, as we know, would affect other categories of case, which we have discussed at some length and may do so again in some not so distant future, around aspects of welfare law?
In that context, I ask about one passage in the Explanatory Memorandum to which the noble Baroness referred, at paragraph 3.3.5. It says:
“Section 11 of the 2007 Act imposes a requirement of permission to appeal from the First-tier Tribunal to the Upper Tribunal”.
Of course at the time that that Act was passed legal aid would have been available. I understand that it will no longer be available for the purpose of obtaining that permission. I regret that position, which we have already debated at some length in the Chamber. The paragraph goes on:
“Amendments provide for this requirement to apply to the entire breadth of the onward appeal, even where the right of appeal from the First-tier Tribunal decision goes wider than a point of law”.
I am not sure what is implied by that paragraph, either in relation to its substance or to the availability of legal advice and assistance for those who might be otherwise financially entitled to it.
Another question that I have is whether valuation tribunals—that is, ordinary valuation tribunals—as opposed to leasehold valuation tribunals are to be brought within the scope of the property tribunal. For example, if by some remarkable parliamentary arithmetic the Minister’s party’s policy and my party’s policy on a mansion tax were to be carried tonight presumably there would be some sort of valuation system required. Even without that there may at some point be a valuation of domestic properties in particular.
There is a system for dealing with commercial properties and business rates with a cumbersome appeal mechanism. Is it envisaged that the property tribunal will take those issues into account? I hope that it might. The current procedure, particularly on the commercial property side, is leading to inordinate delays going back nearly a decade for determination. If it were to be brought within the scope of this new tribunal, I hope that it is a matter that could be dealt with, and a better service could be offered to the potential taxpayer and those organisations, notably local authorities, that clearly will have an increased interest in the local business rates yield of those properties. Perhaps the Minister could indicate, if not now then subsequently, whether this is to be brought within the scope of the new tribunal, either now, or possibly in the future.
With that said we do not object in principle to the proposal. It makes sense to bring things together. I hope that, subject to the observations made by me and the noble Baroness, we can approve these orders and look to a more efficient system applying, drawing as it will on a range of expertise. It is important that that range is reflected adequately in the appointments made to the new tribunal; and that should assist materially in the delivery of a better service to those who seek its decisions.
Lord McNally
My Lords, I thank the noble Baroness, Lady Gardner, and the noble Lord, Lord Beecham, for their interventions. As I mentioned in my opening remarks these orders almost complete the work set out by the Leggatt report. In spite of the points raised by the noble Baroness most people agree that the creation of a Property Chamber is a positive step that will bring benefits to users and consistency in this area of the law. Nevertheless, the questions raised are pertinent. As the noble Baroness, Lady Gardner, has acknowledged, I have a wonderful team behind me, which I hope has been taking note of her comments. She is probably right that at some stage there will be a strong case for a consolidated housing Act. When that will find its way into the parliamentary timetable, I do not know. However, the points that she raised illustrate the fact that we are talking about an area that cuts across a number of departments and pieces of legislation. Nevertheless, I hope these measures illustrate that we have made progress in terms of consistency and efficiency.
Lord Beecham
On that point, the Explanatory Memorandum talks about the right of appeal going wider than a point of law. I appreciate that it may apply to a point of law, but what if the matter goes wider than that? On the face of it, the right of appeal does not appear to be available. I am not asking for a reply now.
Lord McNally
I had better not guess. I would assume that it is not available but I will write to clarify. On the specific issue of legal aid, we do not consider that changes to legal aid will increase inequality in this area. One of the fundamental principles of the legal aid reform has been to discourage unnecessary and adversarial litigation at public expense. Tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation or access to legal aid advice. While we recognise that clients find advice in preparation for a case useful, we do not consider that this is a matter for the group of clients who are generally likely to be vulnerable.
I appreciate the interventions of the two noble Lords who I know have long experience in this area. I know that my colleagues will have valued their interventions, and we will consider carefully the points that they have made. I return to my concluding remarks when moving and speaking to the orders; in putting these final pieces of the Leggatt reforms into place, we have a better and more efficient Tribunals Service that will be to the benefit of citizens.
Lord Beecham
Before the Minister concludes, while it may not be for this evening, I specifically mentioned the point about valuation tribunals. I leave aside the mansion tax element for the moment.
Lord McNally
I apologise. Transferring the Valuation Tribunal for England and the Valuation Tribunal Service into Her Majesty’s Courts and Tribunals Service remains part of our administrative justice and tribunals works programme. There is considerable support from the Senior President of Tribunals and the wider judiciary for this transfer. MoJ officials will continue to negotiate with colleagues in DCLG and the Cabinet Office to identify how best to transfer VTE in the most cost-effective way. The short answer to the noble Lord is: that is work in progress.