Police, Crime, Sentencing and Courts Bill

Lord German Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord German (LD)]

My Lords, I too have signed this amendment. It amazes me that we have unanimity on the problem—a problem that may be solved in a number of different of ways but something which everyone thinks is a problem and should be solved—yet we are being asked to wait a number of years for that to happen. Talk to any Minister who has an interest in taking forward a new proposal, and the first thing that they will say is, “Ah, there is a problem with how much legislation we can get through in a year”, or whatever the space of time between the Queen’s visits.

Clearly, it is a difficult route for anyone to take through a Bill. I am sure that there would not be a Bill talking about the Friday release problem as a piece of primary legislation. It is bound to fall within another piece of legislation, but it is surprising that the Government support the principles upon which this amendment is created but cannot find the route for it to happen more swiftly. Let us remember the point that the noble Earl, Lord Attlee, just made, that the cost of not doing something here is immense.

If you stand outside a prison gate at a particular time on a particular week, you will often see people lined up at a bus stop with the same plastic bags containing their total belongings, their total life, and with their £76, if they have not already spent some of it on getting themselves some food. That is how they face the life in front of them. My noble friend Lady Hamwee was quite correct that the absolute certainty of getting this right is in the through-the-gate services which the Government must provide. It is one of the sad reflections that the gate is seen as a wall rather than as a place from where opportunities which commenced inside the prison can continue. I always relay to anyone who wonders about this that about 60% of the people who do my local recycling are on day release from prison and go back in the evening. The advantage is that they can earn a bit of money and eventually find their way back to employment more swiftly.

We know the difficulties here and it surprises me that the Government have not yet taken the view of the noble Lord, Lord Hodgson, who has sharpened his pencil and come up with the right answer. The right answer is that, if the Government want to take this forward in a bigger piece of legislation, in the interim you create the regulatory powers for the Minister to be able to give discretionary powers to the prison governor to identify those prisoners who are most at risk, and give them the opportunity to sort the problems out with local government. We are talking about a simple matter here.

As my noble friend Lady Bakewell of Hardington Mandeville said, local authorities have a major problem with housing. I experienced this with a couple of people coming out on a Friday. They went to the local housing office and were told there was nothing available. They wandered round from one local authority to another attempting to find a link between them, and I honestly do not know where they ended up, but it certainly was not in a place where their lives could continue and they could make a future for themselves.

The challenge in paragraphs 139 and 140 of the prisons strategy White Paper we were presented with is to get on with it—that is the Government’s intention. I am sure the intention is not to hold back from it. This is a straightforward, simple resolution of the problem, which meets all the Government’s objectives. I support this amendment, and I hope the Minister can tell me the answer to the question asked by the noble Lord, Lord Hodgson: what is not to like?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my first interest in criminal justice came about 20 years ago, before I became a magistrate, when I was a trustee of the Wandsworth Prison visitors’ centre. Like all those centres, it was set up on the recommendation of Judge Stephen Tumim, and we dealt with the needs of the families of prisoners. It was then that I first came across this problem—it is not new—and the fact that it is very much the management of small issues that is of central importance for the prisoners and their families.

We owe a debt of thanks to the noble Lord, Lord Hodgson. He has indeed gone into the detail of this problem and come up with a highly practical way of resolving it—tonight, potentially. This House should take advantage of that opportunity. In one sense, I will be intrigued to hear what reasons the noble and learned Lord the Advocate-General for Scotland might give for not pursuing this, but this really is an opportunity. The noble Lord, Lord Hodgson, has addressed the three original points made in Committee in his new amendment, and I really encourage the noble and learned Lord to take advantage of this opportunity.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise briefly to offer Green support to the right reverend Prelate, who so powerfully introduced these amendments. Indeed, the stress on the need for information is absolutely crucial.

I want to make a very specific point on how the damage of a prison sentence can be magnified where a prisoner who has primary carer responsibilities—most likely a woman—is then subject to recall to prison for a further time. I am drawing here on a report from the Centre for Women’s Justice, which notes:

“The Transforming Rehabilitation Act 2014 provided that all offenders who had served prison sentences of more than one day should be compelled to attend probation supervision for one year. They can be recalled to prison if probation staff find they have failed to comply satisfactorily. Women on licence recall now make up 8% of women in custody.”


That is a truly shocking and surprising figure. This reports notes that the main reason for recall is

“failure to keep in touch with the supervising officer”,

rather than some more serious offence.

A report by the Prison Reform Trust noted that, of 24 women recalled, three had been pregnant at the time of recall. One said that the reason why she failed to attend an appointment was due to a hospital visit for a pregnancy scan. She was then separated from her other children and put back into prison, with further massive disruption obviously resulting. Will the Minister look into this situation? This is part of the sentencing guidelines, but there is a particular issue here in respect of probation and the way in which women—or anyone with caring responsibilities—are treated in this situation.

[Lord German (LD)]

My Lords, I too pay tribute to the right reverend Prelate for her dedicated work in this matter. We could see her laser-like approach to looking at each of the issues facing this group of people, which are clearly addressed in these amendments. These amendments cover a range of issues, but I would like to take up the points already made by the right reverend Prelate, the noble Lord, Lord Bradley, and the noble Baroness, Lady Bennett, about data.

It is interesting that on 6 December, the Minister, in replying to the right reverend Prelate the Bishop of Gloucester, said:

“We do not hold current figures on how many women in prison aged (1) 18 to 24 or (2) 25 years or older have dependent children.”


I appreciate that there is attention being given to this for the future, but I can only echo the words that, if you do not know, then you are going to be making policy in the dark, as the right reverend Prelate said right at the beginning.

However, figures have been produced by the Howard League. I think it gained these figures by doing an analysis of what it could glean from talking to prison governors and staff. We know that women make up 5% of the prison population but are more likely than male prisoners to be serving short sentences for non-violent offences. The majority of those women experienced childhood abuse, and many are victims of domestic abuse, so they are more likely than male prisoners to report poor mental health and problems with alcohol and drugs.

Here is the crucial figure: the Howard League says that two-thirds of female prisoners are mothers of dependent children, and that at least a third of these are single parents. That means around 17,000 children are separated from their mothers by imprisonment each year, and the vast majority of them are moved out of their homes as a result. I am sure that every noble Lord here can understand the strong detrimental effect that has on their development and well-being. The harsh impact on the welfare of their mothers goes far beyond the impact of the imprisonment itself.

There was a review of women in prison in 2006-07 by the noble Baroness, Lady Corston. One of the outcomes of that was women’s centres, which have so far proved very effective at keeping women out of prison. However, there are insufficient numbers of them, and they are insufficiently well resourced. We need to enlarge that figure considerably.

The important feature here is the future. We understand that the Government now intend to collect the right data, so that we can inform our policy-making. The issue of recall, which the noble Baroness, Lady Bennett, talked about just now, is a specific issue and one that has a double effect, of course, because sometimes the reason for being recalled is very slender. The children’s lives are then doubly affected.

Finally, I go back to the number of children. A substantial number of children in this country are moved out of their homes and lack the family basis on which they are being brought up. We must recognise that this specific factor—all the other factors range with it—affects the future of those children. If nothing else, this series of amendments must put right, full and square, that the welfare of the child is fundamental in everything we do. There is an awful lot that we need to do, and these amendments reflect that.

[Baroness Hamwee (LD)]

My Lords, one of the children to whom my noble friend refers gave evidence to the Joint Committee on Human Rights when I was a member and we were looking at the impacts on children of imprisonment of mothers in particular—and fathers too. That child had been 15, I think, and found herself going from literally dancing around the living room to music when her mother was in court to finding herself responsible, as she saw it, for herself and her younger brother. The impact is devastating. I do not want to spend any longer on this at this time of night, but I thank the people who give evidence to committees such as the JCHR and the all-party groups about this sort of situation. It is very vivid and helps us to understand better than we can from words on paper just how devastating this situation can be.

Police, Crime, Sentencing and Courts Bill

Lord German Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[The Lord Bishop of Gloucester]

My Lords, I agree with much of what has been said. On Amendment 82A I reiterate what has been said, and I hope will be said later, about primary carers. We know the damage short sentences do to families. We also know that close to half of those leaving custody go on to reoffend within a year of their release, but two-thirds of those sentenced to less than 12 months go on to reoffend.

This is not pie in the sky; if we look at Germany, which performs better on virtually every metric including reoffending, they imprison a far smaller proportion of the population and sentencers have to make two assessments before sentencing. First, they have to show that a community sentence is inappropriate and, secondly, they have to say that a short sentence will suit the need better. I commend Amendment 82A.

[Lord German (LD)]

My Lords, I have added my name to Amendment 82A. I apologise to the House for being a few moments late into the Chamber; my little legs would not carry me fast enough from committee to Chamber.

Amendment 82A amplifies the debate we had on short sentences in Committee. It does not seek to ban short sentences but sets out to reduce the use of custody for less serious offences for which there are better options within the community. The argument made in Committee, that there are already guidelines and the Sentencing Code to guard against the overuse of short sentences, is disproven by the way in which the matter does not arise in sentencing at the moment.

The current arrangements—the ones the Minister spoke of in Committee—appear to be robust in theory because imprisonment is already reserved for serious offences and custody is already described as a last resort. As principles, these sound restrictive but have not proven to be so in practice. The current arrangements regarding the custody threshold are an unsatisfactory test because they can be interpreted as permissive when an offender has experienced all other possible forms of sentence even though their latest offence is not that serious. The problem with this is that it magnifies the roundabout, which is short sentences without any opportunity for rehabilitation, being outside for a very short period, reoffending and coming back through the system yet again.

This Bill creates a strange ladder of offences because, if you add in the additional features of the community sentences, which is detention in people’s homes, then that increases the features of the system in this first part of the ladder. The ladder then has a rung which has a much shorter stage to the position of imprisonment. We could say that the position after this Bill will be that the first part of the community sentences has much more amplification of the measures that can be used to deal with the sorts of crimes we have been talking about.

Police, Crime, Sentencing and Courts Bill

Lord German Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

As the noble Lord, Lord Dholakia, is not present, it falls on me to urge the Government to accept Amendment 220.

[Lord German (LD)]

My Lords, I present the apologies of my noble friend Lord Dholakia, who is unwell and in some considerable pain. He is therefore not able to attend your Lordships’ House. On his behalf, I have his speech, from which I should like to read some extracts. I am sure that Members of the House of Lords will recognise, of course, that my noble friend had a Private Member’s Bill precisely on this issue, and that it passed all stages in this House. It fell because of Prorogation and therefore had no time in the House of Commons. This House has certainly made its view well known and presented it to the House of Commons. This amendment gives us an opportunity to make sure that what was decided by this House is carried forward.

My noble friend Lord Dholakia has said that, at present, in England and Wales, children are deemed to be criminally responsible from the age of 10, and this provision was last amended more than 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”—which includes serious, violent and sexual crimes but can also include burglary—will be tried in the adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.

The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006, the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. In Scotland, where the age of criminal responsibility was particularly low, at eight, legislation in 2010 amended it to age 12. Outside the British Isles, the age of criminal responsibility is invariably higher. In Holland, it is 12; in France, it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania, it is 14. In most other European countries, it ranges between 14 and 18. Across Europe the average age is 14.

The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligations under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997, the committee said:

“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.”


In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable.

Taking 10 or 11 year-olds out of the criminal justice system would not mean doing nothing with children who offend; it would mean doing what other countries do with 10 and 11 year-old offenders. It would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams. In the minority of cases where court proceedings are necessary, it would mean bringing children before family proceedings courts, which can impose compulsory measures of supervision and care. In the most serious cases, this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings rather than as a custodial punishment imposed in criminal proceedings.

In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:

“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process”.


The evidence internationally is overwhelming, and from the United Kingdom and from this House. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal College of Psychiatrists has expressed the view, based on evidence, that our age of criminal responsibility is too low.

While a 10 year-old might know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year- old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence, they must be regarded as less responsible than an older adolescent or an adult.

The age of criminal responsibility is an anomalous exception. In relation to the age of consent for sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law but take a diametrically opposite approach when it comes to criminal responsibility. The illogicality of our current law is increasingly recognised. The Law Commission concluded last year that the age of criminal responsibility is not founded on any logical or principled basis.

The fact that the numbers involved are relatively small is a strong argument for this amendment. It means that it will not be a huge burden on resources to make alternative provisions through welfare interventions; nor would dealing with these children through non-criminal processes put the public at risk.

Children who are officially labelled as offenders often react by trying to live up to the label and acting in increasingly delinquent ways to achieve status in front of their friends. While the numbers are low, the resources needed to execute a shift towards treating these vulnerable children through a welfare lens, rather than a criminal justice one, would be small, and the positive benefits for them and for wider society considerable.

Even though some changes have been made to court processes involving children, it remains true that exposing young children to a criminal trial is no way to achieve justice. This is a short amendment but its recommendation, if implemented, will change the shape of our criminal justice system for our children.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I apologise to the noble Baroness for speaking before her; I did not realise that she wanted to speak. I also apologise for erroneously referring to her as the noble Lord, Lord Sater.

[Lord German (LD)]

My Lords, I too have added my name to Amendment 221A, which would make youth diversion schemes statutory. I will say a few words about that, as well as about Amendment 219B in the name of the noble and learned Lord, Lord Falconer.

Formal criminal justice system processing—for example, through prosecutions or out-of-court disposals—makes children more, not less, likely to offend. The further a child is processed inside the formal criminal justice system, the greater the likelihood of reoffending, especially for lower-risk children. There is strong evidence both nationally and internationally that youth diversion can reduce crime, cut costs and create better outcomes for children. However, it is currently a non-statutory function for youth offending teams.

We know that practice varies considerably between areas and that some areas have no diversion scheme at all. The 2019 mapping exercise carried out by the Centre for Justice Innovation found that, of the 115 youth offending teams responding, 19 said that they did not have a point of arrest diversion scheme. There is a wealth of great work going on across the country, but there is a dearth of best-practice exchange. I believe that it is quite correct that there should be the principle of local decision-making because that can bring together the wide range of partnerships needed to make any programme work. Keeping it local means that the team can do its work best.

However, the picture is of a set of procedures that are variably practised—some with both breadth and depth, and some without one or other of those attributes. Locally, practitioners are dedicated and have built up some very impressive practices, but in many areas the eligibility criteria are unduly strict, the referral processes slow and the interventions too lengthy. Youth offending teams are not to blame for the variation we see. Because it is non-statutory, we lack robust data and data analysis. Many youth offending teams struggle to keep their services within budget, and staff and funding may not always keep pace with the increased workload, especially when it is non-statutory.

We need a better understanding of what is happening on the ground, where the gaps in provision are, how good schemes can be supported and how good practice can be passed on. The way to achieve this is to make the service statutory and to support the work with funding as necessary. Amendment 219B, in the name of the noble and learned Lord, Lord Falconer of Thoroton, has much the same knowledge request. Basically, you cannot know what you do not know, and if you do not know what the figures and statistics are, you will be unable to take action accordingly. Understanding this better matters both locally and nationally. I believe that making this statutory would ensure that the good practice which abounds in our country is given the opportunity to grow even more, so that we can divert as many young people as possible from the criminal justice procedure. But to do that, we need certainty, and this amendment provides it.

[Lord Falconer of Thoroton (Lab)]

My Lords, I join noble Lords in wishing the noble Lord, Lord Dholakia, well and a fast recovery. He has played an important part over many years in the debate on child responsibility and the criminal responsibility age. We miss him today in this debate.

I also express my unconditional support for Amendment 221A in the names of the noble Lords, Lord Marks and Lord German, which would put pre-charge diversion schemes on a statutory basis. As the noble Lord, Lord German, said, these good schemes are present in many places; it would be a good thing if they were put on a statutory basis.

I agree with many of the points made by the noble Baroness, Lady Sater, on Amendment 221B. I will be interested to hear what the noble Lord, Lord Wolfson, says about it. I do not know whether a review of the whole sentencing position in relation to the youth court is the right answer—let us see what the Minister has to say—but the noble Baroness’s points were powerful and important, and the Government need to deal with them.

The main issue in the debate on this group is the age of criminal responsibility. The case for increasing it has been made overwhelmingly and I agree with it, particularly the point about evidence on the maturation of children and whether they should be viewed in the same category. I strongly support the view that that would increase reoffending because it would make a child see himself or herself as a criminal, which is bad for society. I was also influenced by the point that we are an outlier and that what we do with children, whether in the care system or in the criminal justice system, should not be different.

I have one big concern, however. I do not accept the characterisations of the noble Lord, Lord Marks, and the noble and learned Baroness, Lady Butler-Sloss. Both referred to the incredibly tragic Bulger case, saying that you should not give way to pressure because it does not show leadership when dealing with a case like that; the noble and learned Baroness referred to the tabloids. What happened in the Bulger case was awful and had an utterly legitimate effect on the Merseyside community. To try to dismiss that as something “got up by the tabloids” is, in my respectful view, to misunderstand utterly the significance of the event. Also, if you speak to people who were involved in the Bulger trial, you realise that it was an incredibly important trial. It lasted a month and brought to the fore a whole range of things that were troubling the community, and it also identified what had happened.

For justice to work in our country, it must to some extent reflect reasonable views about what should happen. I do not say that as a result of the Bulger trial, the age of criminal responsibility should be 10. But in considering how to deal with the age of criminal responsibility, which may well go up to 12—the evidence on that is overwhelming—you have to have a justice system that functions properly to deal with that sort of case. Otherwise, the community reacts not because they are inflamed by the tabloids, but honestly and in a normal way to what has happened.

Jamie Bulger’s parents, quite legitimately, made public what had happened and the community knew what had happened. The justice system must be able to deal with that, perhaps through some sort of intermediate proceedings; however, we do need to address this. To those noble Lords, such as the noble and learned Lord, Lord Brown, who say that it casts a long shadow, I say this: it does and it is still there, and it must be dealt with.

Subject to that, I am in favour of increasing the age of criminal responsibility from 10 to something higher. I am not as dismissive as other noble Lords of having some sort of review to deal with this. It would need to look at the issues raised by the noble Lord, Lord Hogan-Howe, which are important. Also, if you are taking 10 to 12 year-olds out of the criminal justice system, it would need to consider how to deal with the issues raised by the Bulger trial, perhaps not through criminalising but through some other process.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am going to talk about Amendment 223B onwards; Amendment 223A comes first, but I am happy to start with those.

Amendments 223B to 223F have been suggested by the Mayor of London’s office to place a new duty on relevant local authorities in England to convene a new secure accommodation local partnership board that would assess the need for secure accommodation and develop a strategy for tackling any shortfall in secure accommodation. There is, as everybody knows, a significant lack of secure beds in London for young people who come into contact with the criminal justice system. This results in them being dispersed across the country, far away from their families and the professionals committed to their care and well-being.

While this is a particular concern in London, it is also the case in other parts of the country. There are only 15 secure children’s homes in England and Wales, and none in the London area. The recent decision of the Ministry of Justice to remove all children from a key institution detaining young offenders in the United Kingdom—namely, the Rainsbrook Secure Training Centre—meant that more London children were sent away from where they lived. They are being provided with neither the care nor the welfare that they need as vulnerable young people. The recent critical inspection report on the Oakhill Secure Training Centre, alongside the decision to close Rainsbrook, also raises worrying concerns about the future of this type of facility.

It is crucial that such provision is available for those who might be placed there on welfare grounds and for those within the criminal justice system. Amendments 223B, 223C, 223D, 223E and 223F, in the name of my noble friend Lord Ponsonby, give effect to this proposal.

[Lord German (LD)]

My Lords, I apologise for being slightly out of turn; I will speak to Amendment 223A in my name and that of my noble friend Lord Marks, on secure accommodation and local authority provision. In December 2016, the Government committed to phase out juvenile young offender institutions and secure training centres and to replace them with a network of secure schools. These have since been renamed secure 16 to 19 academies. Legally, they will be approved by the Secretary of State for Education as secure accommodation and are defined in the Bill as “secure children’s homes”.

--- Later in debate ---

[Baroness Blower (Lab)]

My Lords, it takes a very particular kind of person to be a teacher, but it takes a much more particular kind of person to work in an institution with young people who are clearly already damaged when they arrive. The idea that the Government appear to be taking—a rather dogmatic view about how 16 to 19 provision should be run, in terms of there being only academies and only reflecting the way academies are seen in law in the schools sector—seems to be completely wrong.

It is obvious that the profit motive simply cannot function in this type of provision. Teachers, whether in secure accommodation or other places, are not as well paid as they should be, but the fact is that they are not motivated in general by the level of their salary. Therefore, there is absolutely no reason why we should think that anyone affording that provision should be motivated by profit.

My own experience of young people of this type is that I did, very many years ago, work in a non-custodial, non-residential setting for young people who were at risk of care or custody. I have to say that they were all at risk of custody. But the fact that I worked in a local authority provision, where we were able to work very closely with the youth offending team, our local social services and our probation service, and all of our play therapists and other types of therapists, meant that, in general, it was a very successful provision.

I have, like the noble Lord, Lord Carlile of Berriew, had the opportunity through my union experience to visit teachers working in a whole range of institutions—some of which, I am sorry to say, no longer function. This type of provision, as my noble friend Lady Chakrabarti said, should be at the irreducible core of what the state does and affords for some of our most vulnerable young people. For that reason, I am very happy to support the amendments.

[Lord German (LD)]

My Lords, I am very grateful to those who have spoken in this short debate. Clearly this amendment is at the centre of this group of amendments. In summing up what everyone has said, I would say that the direction everyone has travelled in is not that these schools or academies should be provided by local authorities, but that they should be given the right to tender to provide those schools or academies.

The judgment that the noble Lord, Lord Carlile, made, was that it does not matter who runs them, providing they get the very best education for these very vulnerable children. The standard of education is what is important, not who runs them. At present, local authorities are excluded simply because there is a view that anything called an “academy” in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.

As the noble Baroness, Lady Chakrabarti, said, these are the most vulnerable of children and young people; their lives and futures are at stake. The noble Baroness, Lady Blower, talked of the qualities of the teachers. These teachers have to be the very best, because they are facing the most difficult of circumstances and it becomes a real challenge. It requires a very special person indeed to devote their life to this sort of education. Where you find the best teachers is in the quality of the tender exercise for these establishments.

Excluding local authorities because they breach the Government’s standard that any academy must not be run by a local authority seems to miss the point. My noble friend Lord Marks talked about the experiment with the rehabilitation companies. A lot of effort went into those. The one thing that was totally absent at the end was the engagement of the charitable and voluntary sector. In other words, because they were driven by having to meet a contract, they were not driven by providing the best service for rehabilitation. Quite rightly, that system has now been overturned.

It drives one to think that, if you have as your goals what is best for the child and what are the best services you can provide, excluding those with the most expertise in this area seems simply crazy. I hope that the Minister will be able to address these matters and take on board the whole point of these amendments, which is not to prescribe local government but to offer it the opportunity where it can compete, providing it can offer the best. What matters is the best for our children, not who should run the service.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first turn to Amendment 223A from the noble Lord, Lord German, which would allow local authorities to “establish and maintain” secure academies and prevent any for-profit corporation doing this.

Dealing with those points in turn, first, we are not aware of any specific legislative barrier to the provision of secure 16 to 19 academies by local authorities. However, it is government policy that academy trusts are not local authority influenced bodies. As a result, no academy in England is operated by a local authority and our position here is to mirror academies’ policies and procedures in secure schools to the greatest extent possible. That said—

Police, Crime, Sentencing and Courts Bill

Lord German Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Paddick (LD)]

My Lords, I rise to speak on behalf of my noble friend Lady Bakewell of Hardington Mandeville, who is unfortunately unwell and unable to be in her place. She wanted to speak to Amendment 211 in the name of the noble Lords, Lord Hodgson of Astley Abbotts and Lord Bird, and the noble Baroness, Lady Lister of Burtersett, to which she added her name. She would have spoken about her personal experience, so I shall just read the words that she had hoped to say had she been here.

The routine releasing of prisoners on a Friday, especially before a bank holiday, can cause both services and the prisoners themselves significant problems. Finding accommodation on a Friday afternoon can be extremely difficult. Those who have managed to get clean of substance abuse while in prison find themselves desperate and start using, begin criminal activity again or, in some cases, both. For 10 years, my noble friend was a councillor on South Somerset District Council where there were marvellous officers who worked tirelessly to try to ensure that no one was left with nowhere to stay. The noble Earl, Lord Attlee, made a powerful case for the amendment and the noble Lord, Lord Hodgson of Astley Abbotts, similarly made the case for not releasing prisoners on Fridays or bank holidays. This is a matter that my noble friend feels very strongly about, so I will share two cases sent to her by the officers of South Somerset.

First, prisoner A was released on a Friday from Guys Marsh prison near Shaftesbury. He was given a rail warrant and got on a train to Yeovil. He contacted his family, realised he did not have accommodation to return to and went to see his offender manager at the probation office, who contacted the housing team. By this time, it was 3 pm and they had very little options available for him at that time of day. It was too late for them to find suitable accommodation and although they managed to get him into a hostel in Yeovil, that was not the best place for him, He had left prison clean of drugs and had to stay in a hostel with very easy access to illegal substances. Unfortunately, he used again, the accommodation broke down, he reoffended and was recalled to prison.

Case two was prisoner B, who was released from prison in Bristol on a Friday and got a train back to Yeovil. He then got a bus to Chard, some 17 miles away, to collect his possessions from his old tenancy. He then returned to Yeovil, by which time the offices had closed. He spent the weekend rough sleeping before he could contact the district council again. South Somerset District Council is fortunate to have secured funding to employ a prison release worker who tries to contact prisoners before they are released so they can plan ahead and help them. However, when people are on short sentences, the prisons rarely have time to work with the prisoners, so they get released without the council being informed. My noble friend Lord German has tabled amendments on those serving short sentences.

Other prisoners think they are okay and have homes to return to. These often do not materialise and by the time they realise they are homeless, it is 5 pm on a Friday. Sadly, one of the people in these case studies died over the weekend of 16 and 17 October aged only 45. He was quite a prolific offender and spent a lot of his time in prison. He had been in care from the age of two and did not have the best start in life. The council tried to help him on a number of occasions and sometimes succeeded, but not always. These are just some examples of what happens when prisoners are released on Fridays. This could be avoided by flexibility being used both in the courts and in the prisons. I hope the Minister will agree that this is a very sensible, non-controversial amendment which could prevent reoffending for the want of a roof over the heads of prisoners who have finished their sentences. I fully support Amendment 211 and look forward to the Minister’s response.

[Lord German (LD)]

My Lords, I will add a few words to give some examples of how this actually affects real people. The third sector, the charities in our society, have been very good at helping and supporting people. Given that we now know that a third of prisoners are released on a Friday, one would think that the charity on hand to meet them at the gate and help them through a very difficult period on a Friday would be helped by the prison authorities explaining when the prisoner was going to be released. After all, if you are sitting in a car, possibly round the corner from the prison, waiting for the gate to open and the prisoner to come out, you need to know that you are not going to be waiting there from 8 am or 10 am until 5 pm or 6 pm. Yet, in fact, that is the story I have heard from one charity that helps people in this matter.

The second example was very concerning. A food bank based in Hereford told me that these prisoners—the third who are released without anywhere to live—were given tents and sleeping bags, directed to a farmer’s field and given the address of the food bank. That is the sort of emergency you then place these people in. These are people who have done their sentence but who face no fixed abode, nowhere to live and certainly no money.

The third thing that worries me is how people get their benefit if you now require a bank account. As I understand it—perhaps the Minister will correct me—setting up a bank account while you are in prison is not a possibility; in other words, even if you were to get your benefit paid at the time you left, you would have to have a bank account to pay it into and to provide the necessary ID as well, all of which of course becomes less popular and less possible on a Friday.

These amendments do not seem to be rocket science. They are actually very practical and since that group of one-third of prisoners who are let out on a Friday are the group most likely to reoffend if they cannot find anywhere, there is a societal impact. We all can benefit by giving these people the right helping hand in their very first window of opportunity in real community life.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I support both these amendments, but I want to add a brief comment on the mechanism which they both have in common: the giving of reasons. I know from my own experience how valuable it is to marshal your thoughts when you are having to give reasons, and sometimes when you write them down you wonder whether your thoughts in the first place were correct, and you may think again as a result. So the mechanism that is being suggested is a good one and, with great respect to my noble friend Lord Pannick, I think Amendment 213 in the name of the noble Lord, Lord Ponsonby, does add something to the code.

Of course, the code encourages care in passing custodial sentences and it sets it out very well, but it is this additional element which is of value. One particular word in the amendment adds force to it, and that is “must”. Everybody will have to do this. The noble Lord will know better than I do how often magistrates in particular pass custodial sentences without giving reasons. The point is that this discipline, which both amendments seek to inject into the system, adds value.

That having been said, I hope that these reasons will not just become a rota, because there is some experience in the Supreme Court where we had to give reasons for refusing leave to appeal; we had many of these cases to deal with, and we adopted a mechanism which I think the Minister will know quite well—it was the same reason given every time. That does not really meet what I think the noble Lord, Lord Ponsonby, is getting at, and I hope the Minister will be able to reassure us that when the word “must” is put there, together with the other matters in his report, it will actually add value and people will really think before they give their reasons, and not simply adopt a formula.

[Lord German (LD)]

My Lords, I would like to add a little to the evidence which has already been provided to the Minister, but he must of course know the evidence which has already been made available to him. Just in case it has not, I repeat what the recent sentencing White Paper says: short sentences

“often fail to rehabilitate the offender or stop reoffending.”

It goes on:

“A Ministry of Justice 2019 study”—


an analytical exercise, full of figures—

“found that sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.”

In other words, the Government’s own evidence points to supporting these amendments—not necessarily in the same words, but certainly the thrust of them. We should remember that, pre-pandemic, nearly half of those people who were sentenced to custody in England and Wales were subject to short sentences of less than, or equal to, six months.

There are many reasons why we must support the change—more effectively reducing reoffending, dealing with issues such as drug use and producing better outcomes for women. Short prison sentences do not provide sufficient time for addressing those issues, such as dealing with substance addiction, or benefiting from any education and training facilities on offer. There may not even be sufficient time for the prison authorities to devise a programme to address the prisoner’s needs on release day. The best we can say about short sentences is summed up by one of the former Conservative Prisons Ministers, of which there have been many in recent years, who said that short prison sentences are

“long enough to damage you but not long enough to heal you.”

Almost two-thirds of prisoners sentenced to these terms of less than 12 months will reoffend within a year. The amazing statistic is that nearly half of adults are convicted of another offence within one year of release, but anyone leaving custody who has served two days or more is now required to serve a minimum of 12 months under supervision in the community. As a result of not fulfilling their supervision orders in some minor way, 8,055 people serving a sentence of 12 months or less, and sometimes of only a few days, were recalled to prison in the year ending December 2020.

What has happened to the Conservative plan to secure a reduction in the use of short sentences? I think I know the answer, but it would be helpful if the Minister could confirm to the House what has happened to this idea. The Bill can address this issue. To finish with the words of a former Conservative Secretary of State:

“For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working.”


Offenders are less likely to reoffend if they are given a community order. These are much more effective in tackling the root causes behind criminality.

Given the evidence of both Conservative Secretaries of State and the evidence produced in the Government’s own studies, can the Minister explain whether there has been a U-turn or a Z-turn, or whether the course is laid out as described in the evidence that they have received?

[Lord Marks of Henley-on-Thames (LD)]

My Lords, this debate has raised two important issues: the justification for short custodial sentences and how we curtail their imposition in practice.

The debate saw an interesting exchange between the noble Lord, Lord Pannick, and my noble friend Lord Beith, and I take the point made by the noble Lord, Lord Pannick, that the law requires courts to avoid unnecessary custodial sentences where alternative sentences are appropriate. However, my noble friend Lord Beith is right that far too many short sentences are still imposed. The noble Baroness, Lady Bennett of Manor Castle, gave us some of the figures. The noble and learned Lord, Lord Hope of Craighead, made the point that the amendment does add something to the existing law. One thing it adds is that it is focused entirely on short sentences, whereas the Sentencing Code provisions are not.

This House has heard endlessly of the damage that short custodial sentences do. There simply is no evidence to justify their regular imposition. If the Minister has any such evidence, perhaps he can tell us what it is. We regularly stress the extent to which the rate of reoffending following short sentences greatly exceeds reoffending rates for community sentences, a point made by the right reverend Prelate the Bishop of Bristol, using the words of the right reverend Prelate the Bishop of Gloucester; it was a point also made by my noble friend Lord German a moment ago.

Police, Crime, Sentencing and Courts Bill

Lord German Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord German (LD)]

I will speak to the issues raised in these amendments. In summing up the last group of amendments, the Minister said that we had to achieve the proper balance between rehabilitation and punishment. This is even more important in the area of youth justice which we touched on—admittedly with a bit of elasticity of the rules—in the previous group of amendments, but which are particularly relevant here and will occur later in this Bill as we deal with other measures.

The balance between what I would call repair and support for young people and punishment is one of great importance, and we must adjust that balance with great care indeed. This country, along with many others, recognises that children should be treated differently from adults in the justice system. However, there is a concerning trend in this government-expressed Bill, particularly in Clause 104, towards what I would call harsher treatment of older children, and bringing the sentencing of children closer into line with adults. This clause in particular proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20. These are the most severe sentences that can be handed down by the courts. The other clauses also touch on the balance that I am talking about.

The Sentencing Council gives a full explanation of why children have to be treated differently, referring to lack of maturity, acting impulsively, inexperience, emotional volatility and negative influences as factors that ought to be considered. In particular, it notes that children and young people are likely to be susceptible to peer pressure. The noble and learned Baroness, Lady Butler-Sloss, in her example in the last group, referred to exactly that sort of problem, when young people respond to peer pressure and then resent and turn from it afterwards.

Clause 101 would permit the court to diverge from mandatory minimum sentences only when there are “exceptional circumstances”. This is change from the current wording, “particular circumstances”. Neither “particular” nor “exceptional” have been defined in law, or in this Bill, or in the Explanatory Notes associated with the Bill. So who is going to interpret “exceptional circumstances”? If it is to be the Secretary of State, where does that definition exist? Perhaps the Minister could give us the definition at the end.

I went to the dictionary, as one always does to look up words, and looked up “exceptional”. There are at least four definitions, ranging from “only likely to happen very infrequently” to “having much more than average intelligence, ability, or skill”. With that breadth of difference in the understanding of “exceptional”, I am sure that there is a great deal of work to be done on that definition. There is a world of difference between “likely to happen very infrequently” and “beyond the average”, which is the other interpretation that you could give to this word. Either way, it is important that the Government tell us why they have made that change and what it means in practice.

My second point is about the discrimination elements in these amendments. The Government have recognised that these clauses have a disproportionate impact on black and minority ethnic children. We have only to turn to the Joint Committee on Human Rights report. Basing its comments on the Human Rights Act 1998, it says:

“Discrimination may be justified, but only where the difference of treatment pursues a legitimate aim and where there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”


The report says that many of the witnesses who were interviewed questioned whether the Bill had gone too far and does discriminate. So there are questions to be asked as to whether the Bill breaches the right that people have under that 1998 law.

The report further states:

“The government recognises the unequal effect of these measures in its Bill, but does not provide any mitigation”.


So can the Minister provide an explanation of the measures they propose to mitigate the impact of this discriminatory effect on BAME children? The House will need to consider whether these measures need to be written into the Bill, but I hope the Minister might undertake that action could be taken through government amendments.

The Bill proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20, and these, as I said, are the most severe sentences. But those who offend as children should not lose the opportunity to benefit from the youth sentencing framework and rehabilitation periods, because system delays there are not of their fault.

The court delays we have at the moment existed before Covid and have been exacerbated since. In the year ending December 2019, before Covid, the average delay between offence and court completion was 160 days—nearly 23 weeks. That is eight weeks longer than in 2011, despite the reduction between 2011 and 2019 in the number of youth offence court cases. Covid has made this situation so much worse. Can the Minister confirm that those who cross the age threshold because of these delays will not be subject to a more severe sentence?

In a recent report from Her Majesty’s Inspectorate of Probation, the chief inspector said about the impact on black and minority-ethnic children:

“Half of the boys in the inspected cases had faced racial discrimination in their life; a third had been victims of criminal exploitation and a quarter had a disability … Yet many of these children are only receiving support with these needs for the first time through the criminal justice system.”


By looking at the criminal justice system we are looking at the cart, but the horse has already bolted from the stable. This is quite clearly unacceptable. Her Majesty’s Inspectorate of Probation says so, and I believe we need to revisit the amendments the Government have tabled to ensure that the proper balance is achieved, as the Minister said in response to the previous group of amendments. Proper balance does not mean turning the dial far more towards punishment than towards the repair of these young people.

[The Lord Bishop of Durham]

My Lords, I speak on behalf of the right reverend Prelate the Bishop of Derby on this occasion, who could not be here today. I add my support to Amendments 198, 199, 200 and 201, in the name of the noble Baroness, Lady Massey, which deal with tariff starting points or DHMP sentences as they relate to young people. The noble Baroness laid out well the case for amending Clause 104 so that it takes into account evidence on maturation. I will briefly add the right reverend Prelate the Bishop of Derby’s perspective as a Lord spiritual and as part of a team of Bishops focused on Her Majesty’s prisons, particularly young offender institutions. She also declares an interest as vice-chair of the Children’s Society.

Children ought to be treated as children, and we resist any erosion of that in law. If we are to argue to the contrary we must be content to go against the trajectory of every other arena of English law. Eighteen is soon to become the age at which people can legally marry, leave education and join the Armed Forces. I urge noble Lords to reflect on this. If we project from this that children are to be protected from making decisions about marriage, education and even enlisting in Her Majesty’s Armed Forces until they reach a maturation point of 18, then the same logic surely must continue to apply in this instance.

The net consequence of Clause 104 would be more children spending longer in custody. Put simply, with very few under-16s impacted, the result would be more older teenagers receiving more severe sentences than is currently the case.

I intend to oppose Clause 103 being added to the Bill. Clause 103 would make it possible for judges to impose whole life orders on offenders aged 18 to 20. Our amendment would ensure that the minimum age for imposing a whole life order does not drop below 21. Although these are not legally children, in common with Clause 104, Clause 103 fails to take into account the Government’s 2015 response to the report by the noble Lord, Lord Harris, into the deaths of 18 to 24 year -olds in custody, where the Government agreed that

“It is widely recognised that young adults, particularly males, are still maturing until around 25 years of age.”


I am grateful to the Prison Reform Trust for its briefing on this and for highlighting that the origin of Clause 103 derives entirely from a single recent case. I understand the strength of feeling around that particularly tragic case, as it resulted in terrible loss of life. However, I do not believe there is any justification for extending whole life orders to young adults in this manner.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am certainly not critical of any particular sentence passed in any particular case. What I do think the figures show is that we need a test that more clearly balances the minimum sentence on the one hand with the exception on the other. We think the test of exceptional circumstances—I know that the noble Lord, Lord German, is waiting patiently—meets that test.

I turn now to Clause 104 and 105, which both relate to children who have committed murder and will therefore receive the mandatory life sentence of detention at Her Majesty’s pleasure. I hear in this regard the words read to us on behalf of the right reverend Prelate the Bishop of Derby. When giving a life sentence, the judge sets a minimum amount of time that must be spent in custody before the offender may be considered for release by the Parole Board. This is known colloquially as the tariff. Judges use starting points to determine that tariff. They can set a minimum term higher or lower than the starting point by taking into account aggravating or mitigating factors. Currently, there is a 12-year starting point for all children who commit murder.

In this Bill, we are replacing the fixed 12-year starting point for all children—what might be called the mandatory starting point—with a range of starting points that take into account the child’s age at the time of the offence and the seriousness of the murder. The age groups are to reflect the different stages of development that a child goes through and that, although both in law are children, a 10 year-old is very different from a child of 17 years and 10 months. The different levels of murder, if I can put it that way, are based on the more nuanced system used for adults, which takes the seriousness of a murder into consideration. Therefore, the twin factors of age and the seriousness of the murder are then brought together. The higher the age and the more serious the murder, the higher the starting point, and the converse is also the case.

This amendment retains a range of starting points for children based on three age groups, but it does not distinguish between the levels of seriousness of a murder. Because murder can vary in seriousness in the criminal sense, we believe it is right that the starting points should reflect this as well. We do not agree that starting points should only be based on the age of the child; they should also reflect the seriousness of the murder. Moreover, the amendment does not address the gap in starting points between older children and adults. A child of 17 years and 10 months is very close to becoming an adult. The amendment would mean that the same category of murder would have a 12-year starting point for a 17 year-old, but a 30-year starting point for an 18 year-old. However, I underline the same point that I made about minimum sentences. The judiciary will continue to take the individual circumstances of a case into consideration and can give a minimum term higher or lower than any given starting point.

Let me address the review amendments. Children who are sentenced to detention at Her Majesty’s Pleasure are eligible to apply for a review of their minimum term. In this Bill, we are placing the minimum term review process in legislation. It allows children who are aged under 18 when sentenced to detention at Her Majesty’s Pleasure to apply for a minimum term review at the halfway point. We are restricting eligibility for further reviews to be available only to those who still aged under 18 at the time of the further review. By contrast, this amendment would allow those sentenced as an adult to apply for a review at the halfway point and continue to apply every two years. It would also allow adults who were sentenced as children, who have already had one review, to continue to apply for a review every two years. This amendment is neither necessary nor in line with case law. That is because, under the measures in the Bill, children who are sentenced to detention at Her Majesty’s Pleasure will continue to be eligible for a review at the halfway point of their minimum term.

That right has developed through case law. It recognises the unique rights of children and the fact that they develop and mature at a faster rate than adults. The review is an important part of confirming that the minimum term remains appropriate or determining if a reduction should be made. However, they should be eligible for a further review only if they are still a child at the time of that further review. This is because, as the right reverend Prelate the Bishop of Durham said on behalf of the right reverend Prelate the Bishop of Derby, children have the greatest capacity to demonstrate the significant changes to maturity and outlook that the review considers. Therefore, the opportunity for multiple reviews would be available only to younger children at the initial time of offending, as they are more likely to be under the age of 18 at the time of any further review.

Those who commit murder as a child but are sentenced as an adult have already had their age and maturity taken into consideration. Adults who commit murder are not entitled to reviews and so this Bill ensures that all offenders who are an adult at the time of sentencing are treated equally. It is important to remember that we are talking about the most serious offence, that of murder. The minimum term set by the judge takes into consideration a child’s age and maturity at the time of the offence and reflects the seriousness of the offence. That minimum period should therefore be served, except in exceptional circumstances.

That brings me to the question of the definition of exceptional circumstances, and I am grateful to the noble Lord, Lord German, for his patience. “Exceptional circumstances” is a phrase used all over the law and the criminal law. It is a matter that judges are well used to interpreting. It is a phrase in plain English. With the greatest respect to the noble Lord, it does not need, or would benefit from, a gloss from the Dispatch Box. The phrase means what it says on the tin. It is for the individual judge in the individual case, having heard the evidence, to decide whether the exception is made out.

[Lord German (LD)]

Can the noble Lord tell me the difference, then, between the current words, which are “particular circumstances”, and those that the Bill is proposing—“exceptional circumstances”? What is the difference between “particular” and “exceptional” to the fraternity of judges and lawyers who do not need it written down because they all understand it? For those of us who are non-lawyers, some definition would be helpful.

[Viscount Hailsham (Con)]

It is a higher bar.

--- Later in debate ---

These are difficult decisions and this is a difficult issue, but the public is better protected by these decisions being made in a conventionally open, transparent and independent way: namely, in a courtroom rather than an office in Whitehall. I beg to move.

[Lord German (LD)]

My Lords, I have added my name to this amendment not because of its length but because of its importance. The noble Lord, Lord Carlile, has explained exactly the constitutional significance of this matter. Clause 109 as it stands will create a new power for the Secretary of State for Justice to be able to vary, after the imposition of sentence, the effect of a standard determinate sentence for individual prisoners. This provision would empower the Secretary of State to halt the automatic early release of a prisoner if they believed that, if released, the prisoner would pose a significant risk of serious harm to members of the public by committing either murder or a specified offence. Instead of automatic release, these prisoners would be referred to the Parole Board and kept in prison to serve their full sentence if the Parole Board does not deem them safe to release.

The main purpose of this amendment is not to change the action of having a referral but to change where that decision is laid. It is to ensure that decisions about sentencing are taken by the judiciary and not by the politician. Many of us here are politicians, and most of us would regard ourselves as politicians. In that role, when we have taken certain actions it has often been described as political interference. Political interference is of course what this amendment is trying to put to one side. It is to ensure that there is a fair and appropriate hearing and to ensure the strength of the independence of our judiciary and that it retains its ability to make judgments of the kind envisaged in this amendment.

As it stands, the operative actions on the rules on a determinate sentence are to be taken by the Secretary of State. The purpose of this amendment is therefore to uphold the judicial process while still giving effect to the outcome sought in the Bill as presently drafted. It will ensure that there is no inadvertent or intentional political bias that could result in a prisoner serving longer in prison than was envisaged by the sentencing judge.

The division between the Executive, Parliament and the judiciary is a fundamental pillar of our society and should be upheld. At public expense, we send many Members of this House and the other place around the world to try to strengthen the judiciaries in many developing countries. One of the tenets of that work is that there is a strong and independent judiciary. I think it is important that we make sure that we uphold that principle here in Parliament so that we do not move from it.

We are not given an understanding of the tests which will be applied for the Secretary of State to make a direction for a Parole Board hearing. I do not want to start a discussion again about the definition of words, but what are the reasonable grounds? There is no suggestion that the Secretary of State would have to publish the grounds which guide their decision to refer to the Parole Board. We simply do not know what those grounds might be beyond some indications we get in ministerial Statements.

There is a strong incentive for Ministers to say: “There is a public matter here. I can sense that the public are concerned about an issue.” They will then refer it to the Parole Board and the Parole Board would see no political advantage in not referring it and would accept the case as it was given. There would be a momentum for the Secretary of State when matters arose to just simply say that they would be automatically referred.

The effect of this provision in practice will depend heavily on any gatekeeping process before cases are brought to the Secretary of State’s attention. I hope that, when the Minister replies, he will tell us who will be the gatekeeper and what the gate will be like.

The second concern, which the noble Lord, Lord Carlile, has mentioned, is that if prisoners were to be directed by the Parole Board to serve their full term, this would eliminate the ability for such prisoners to transition to community life through the use of licences. The licence provision has been a powerful tool in the rehabilitation process, allowing certain freedoms under supervision. Licences play an important part in transitioning to work and integration into society.

Following due process and limiting arbitrary power are hallmarks of a free society. That is what is at the heart of this amendment, and I ask noble Lords to support it.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, we have had a very interesting debate. The last few speeches have highlighted the problems with the approach that I was going to set out. In short, where we end up on this amendment is, in effect, the High Court taking the decision and not the Parole Board. I shall come back to the “would” point made by my noble friend Lord Hailsham, which I was going to make as well and is absolutely right.

The amendment would require the Secretary of State first to refer high-risk offenders to the High Court. They could then be referred to the Parole Board only with the court’s approval. That is the structure that we are dealing with. The structure in our clause is that the Secretary of State refers directly to the Parole Board. If referral to the High Court is put in as an intermediate process, it would mean two things. First, the High Court may reject the referral from the Secretary of State if it did not agree that the offender would pose a risk of serious harm. My concern is secondly that, if the High Court did consider that the offender would pose a risk of serious harm, it would roll the pitch in a very serious way for the Parole Board.

I therefore have concerns about both the necessity and the benefit of involving the High Court in this process, but nothing I am going to say is intended to undermine two points on which I agree with the noble Lord, Lord German; first, on the importance of due process and, secondly, that we should limit arbitrary power. I suggest that the court does set out due process and limits arbitrary power.

The important point to bear in mind is that the new power is not a re-sentencing exercise. It is not the Secretary of State extending the detention of the prisoner. I fully accept the point made by the noble Lord as to the important boundary between Secretary of State and judge, between Executive and judiciary. I also want to have a strong and independent judiciary; I believe we do. That principle is not contravened by this clause, because it is the independent Parole Board that will make the final decision as to whether an offender is safe to be released early. The Secretary of State has the power to make a referral, but he or she must have a sound basis for doing so and must give the prisoner notice, which must include the grounds for making the referral and give the prisoner the opportunity to make representations to the Secretary of State.

As for the criteria in play, we will closely monitor and record how the power is used. We will publish a policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision-making procedure in determining whether to refer a case to the Parole Board.

[Lord German (LD)]

That was a good statement of intent. When do the Government expect to be able to produce that? Would it be before we have concluded this Bill, so we will know where we are going with it?

[Lord Wolfson of Tredegar (Con)]

I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?

Royal Commission on the Criminal Justice System

Lord German Excerpts

Tuesday 6th July 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

The noble and learned Lord is right that we have to make sure that people have their cases heard within an appropriate time. We have opened 60 Nightingale courts, and we now actually have more rooms available for jury trials than we had before the pandemic. The important point is to make sure that we are running the criminal justice system as hot as we possibly can, and that is exactly what we plan to do over the coming year. There is no limit on the number of sitting days in the criminal courts this year.

[Lord German (LD)]

My Lords, the Minister may be disappointed but I am dissatisfied in the extreme with the fact that the noble Lord, Lord Ramsbotham, was told in November last year that staff had been appointed to this royal commission. If staff have been appointed, have they now been laid off and are doing other jobs? Why have they not yet prepared the terms of reference and the terms by which the commissioners might be appointed? Surely the royal commission is not a programme which is just paused; it is far more significant. I think the Government need to recognise that, because we are being let down badly.

[Lord Wolfson of Tredegar (Con)]

I agree, with respect, with the noble Lord that the royal commission is extremely important. That is why we want to make sure that we have proper and focused terms of reference and that the work to set up the royal commission is done at a time when we can do it properly. There is a huge amount of work being done at the moment throughout the criminal justice system to respond to an unprecedented pandemic. I suggest that it is right in those circumstances to pause the work on the royal commission; we will come back to it after we have dealt with the pandemic.

Prisons (Substance Testing) Bill

Lord German Excerpts

2nd reading
Friday 16th April 2021 Lords Chamber

[Lord German (LD)]

My Lords, I, too, start with a short tribute to the late Dame Cheryl Gillan, in whose name this Bill was taken through the House of Commons. Cheryl and I were both brought up in Cardiff and, although her politics are not mine, we shared a deep love of music. We have been deeply involved in the work of the choir of this Parliament—she as a founder member and former treasurer and I as the present chair. In a book soon to be published charting the 20-year history of this great parliamentary institution, Cheryl wrote that the Parliament choir shows a gentler side of our democratic institution, which has proved itself to be capable of producing great beauty and harmony. Her work in bringing our Parliament and the German Bundestag closer together is a tribute to her. I am sure that we all appreciate this as part of her legacy to this institution.

In the sense of the great harmony of which Dame Cheryl wrote, I welcome the intention of this Bill, narrow in scope as it is. Managing drug abuse is a complex matter. The Prison Drugs Strategy splits its first of three aims, “Restricting Supply”, into 18 action areas, one of which is drug testing. If it is one of 18 actions in meeting the first of the three aims of that drug strategy, it demonstrates the complexity of this issue. The Bill seeks, first, to future-proof the myriad drug variations that continually appear and, secondly, to properly assess the prevalence of drug use on the prison estate. These are narrow but important ambitions.

I will raise three consequences of the Bill. First, in getting a true picture of drug misuse on the prison estate, what do the Government do with this information? Is it to broaden understanding, to test assumptions, to influence policy change or all three of these? If so, then it is legitimate to know how Parliament will be informed of these outcomes and in what timescale. So, in replying, can the Minister tell the House how the Government propose to publish these outcomes in a form that Parliament can analyse and discuss?

Secondly, testing will undoubtedly demonstrate more drug use than at present. The consequence of this increase in the number of prisoners misusing drugs is that there will also be an increase in demand for drug treatments. The Government’s Explanatory Notes state that the Bill will have few direct financial consequences, but they only refer to the increased costs of testing. This misses the importance of the growth in demand for adequate drug therapeutic support for substance misuse treatment. So will the Minister explain how increased demand for drug-misuse treatment will work without additional funding? From the Explanatory Notes, it would appear that these services will be spread more thinly across a wider cohort of prisoners.

Finally, the new knowledge gleaned from the prevalence of drug testing will require research and analysis—so, in replying, can the Minister tell the House what provision has been made for research and analysis and who will carry this out? With these three questions, I welcome the Bill, and I hope that it has a speedy passage.

Covid-19: Impact on the Prison System

Lord German Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not want to repeat what has been said, but on vaccinations we are following the approach of the Joint Committee on Vaccination and Immunisation, which we consider appropriate. The action we have taken in prisons has meant that the number of deaths seen in them is significantly lower than the approximately 2,700 deaths modelled by Public Health England last spring. There is rigorous testing in all our prisons and we do everything to make sure that there is no transmission of the virus into or out of them.

[Lord German (LD) [V]]

If we are to end the miserable sight of the Friday queue of released prisoners with plastic bags standing at the bus stop with nowhere to stay and no work or training, rehabilitation work must be started and continued before and after the prison gate. Meaningful training has all but halted in our prisons, so can the Minister reassure us that everything that can be done will be done—within the next weeks, not months—to enable the programme of rehabilitation training in prisons to be recommenced? If it cannot, will the Government reduce the prison population?

[Lord Wolfson of Tredegar (Con)]

My Lords, I assure the House that everything that can be done within the appropriate prison regimes, given the prevalence of the pandemic, will be done. Releases are a different situation; we monitor them against the prevailing pandemic issues.

Prisons: Self-harm Among Women Prisoners

Lord German Excerpts

Monday 15th March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, the short answer to my noble friend’s first question is yes. The reason is that women generally commit less serious offences than men; therefore they get shorter custodial sentences. Short custodial sentences are a problem because they can have significant negative impacts, in terms of family, losing accommodation and losing employment, while not really giving prison governors and the authorities an opportunity to do anything meaningful with regard to rehabilitation. So far as the first residential women’s centres are concerned, we announced that our first one will be in Wales. I am particularly pleased—if I may say so—that a suitable site in south Wales is now being looked at for the second site. That will provide a robust community alternative for women who would otherwise receive a very short custodial sentence.

[Lord German (LD) [V]]

Women prisoners engage in self-harm as a method of coping with being in prison and separation from their children, of whom they are probably the main carer. At the moment, without visits, and with increasing numbers held on remand and in solitary confinement, why have the Government not made use of their own early release scheme, which ground to a halt last year? Can the Minister tell the House how many times in the last year the 42-day maximum solitary confinement rule has been breached for women prisoners—or does 23 hours locked alone in a cell not count as solitary confinement?

[Lord Wolfson of Tredegar (Con)]

My Lords, we should not proceed on the basis that self-harm is something which starts in prison. On the contrary, a number of women—perhaps many women—have been using self-harm to cope for many years. That is exacerbated, no doubt, in the prison environment. We have to remember when we talk about the incidence of self-harm in prison that this is characterised by a small number of women who self-harm multiple times. That does not mean that it is not a problem; it means that we need to focus our resources on that relatively small number of women who self-harm repeatedly. The noble Lord asked for particular statistics; I will have to write to him on that matter.

Learning Disabilities: Child Trust Funds

Lord German Excerpts

Thursday 11th February 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not want anybody to give up accessing money which is rightfully theirs. There are a number of provisions in place for fees but, to sum this up, the Government’s intention is that no one who needs to apply to the Court of Protection solely to access a child trust fund will pay fees.

[Lord German (LD)]

Further to his answer to the noble Lord, Lord Touhig, will the Minister tell the House why it is that the scheme which the investment and savings body has put in place while waiting for a permanent solution, and has been operating—moving the system from cumbersome to semi-cumbersome, not a full solution—is not getting the blessing of the Ministry of Justice in order that it can make at least some progress in this matter?

[Lord Wolfson of Tredegar (Con)]

My Lords, the reason is that it is not for the Ministry of Justice to give its blessing to private sector schemes and to say whether they do or do not comply with the relevant legislation. That legislation is important: it is there to protect people. If the private sector wants to put in a scheme, that is a matter for the private sector. So far as my department is concerned, we need to make sure, so far as we can, that the court rules and procedures are appropriate, proportionate and accessible.