Legal Aid, Sentencing and Punishment of Offenders Bill Debate
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Lord McNally
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Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Phillips of Sudbury
My Lords, I shall intervene briefly. I declare an interest in that a firm in which I was a partner had major arrangements with a number of trade unions.
I say to the noble Lord who has just spoken that the unions and the firms who do their work will be able to adjust their arrangements. For a start, by not paying the referral fee, the solicitors doing the work will be able to drop their charges to take account of that fact, and the trade unions will be able to adjust their arrangements with their members, although it will not be a major adjustment. The point that the noble Lord reasonably made is capable of adjustment in a way that will enable the abolition of referral fees—which, in general, are extremely deleterious to justice—to be effected.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this proposal is not in any way union bashing and I am sorry that it has been caught up like that. I was pleased that when the noble Lord, Lord Beecham, opened the debate he joined with the Government in our general desire to ban referral fees. It is of course right that injured people should be able to pursue claims and under our reforms they will be able to do so. Costs will be more proportionate and the damages they receive will be increased.
However, it is wrong for third parties to be able to profit from referral fees for personal injury cases in this way. I found the intervention of the noble Baroness, Lady Deech, last Wednesday extremely powerful and I recommend noble Lords to reread it. The noble Lord, Lord Beecham, is right: it is not four-square with referral fees but it illustrates the danger of sweetheart relationships in this area. The Law Society was quite right—but rather belatedly so—to deal with a great injustice to miners who had already suffered much in their industry.
On the question of political funding, yes, I understand the difference between union general funds and the political fund and that it is the political fund that goes to the Labour Party. However, again, the noble Baroness, Lady Deech, explained that she was referring to the party itself acting as a referee. Even as I speak, I wonder whether this merry thought has occurred to any other political party. I know political parties look for ways to earn funds and, if this has been thought up by the Labour Party, it is, at the moment, within the law. However, we do not think it is right.
I also welcome the intervention of my noble friend Lord Phillips. I do not always welcome his interventions but this time he has put his finger on it: we are not preventing solicitors taking on a case at reduced rates or for free; nor are we preventing solicitors from making donations to charities or other not-for-profit organisations. Charities representing injured people will still be able to offer advice and recommend the best law firms. However, they should do that in the claimant’s best interest, not on the basis of what fee they can get for that claim. The amendment would not only allow an exception for charities and unions but for all not-for-profit organisations. I fully appreciate that trade-union, charity and political-party referral fees can be nice little earners, but that kind of relationship is not in the best interests of the consumer.
I say to the noble Lords, Lord Monks, Lord Brooke of Alverthorpe and Lord Martin, that I am well aware of the record of trade unions in legal advice and the help that they give to their members. I have no doubt of the accuracy of the figure of 50,000 a year given by the noble Lord, Lord Monks. However, I also take the point—which I did not know—that only two trade unions use referral fees. This suggests to me that this is not the universal attack on trade unions that anybody has suggested. We simply say that whether it be political parties, trade unions or charities, it is not healthy or in the consumer’s interest to have sweetheart deals between unions, charities or political parties and individual law firms.
The amendment goes further than earlier proposals. Some claims management companies are currently not-for-profit organisations and others could become not-for-profit bodies in order to get around the ban. In Committee, the noble Lord, Lord Bach, tabled an amendment that would have made an exception for charities only. This amendment now makes a wider exception which would exempt unions, political parties and not-for-profit claims management companies as well.
We believe that referral fee arrangements are wrong in principle. Under the cloak of support for charities, the amendment would allow payments for the referral of personal injury cases by a wide range of organisations. This amendment would make a mockery of the ban on referral fees, which the Opposition have claimed to support in principle—and I believe they do support it in principle. I really think—and the more I listen to this debate the more I think it—that for the Opposition to press this amendment is simply wrong-headed. I hope that the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.
That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.
I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.
The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.
Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.
I feel strongly about this—
Lord Beecham
My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.
I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.
Lord McNally
My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.
Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.
On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.
I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. It very much falls into two parts, as far as I can see, in terms of action by and with the Information Commissioner and action by the Secretary of State and Ministers relating to unauthorised and authorised marketing in NHS hospitals. The bit I find difficult is not that relating to the Information Commissioner; indeed, it is very welcome that those powers are being mobilised and that the Minister, Mr Djanogly, is having the necessary meetings with the Information Commissioner. The surprising part concerns the National Health Service. I think that the view around this House is that there should be no authorised marketing of this kind within NHS hospitals. What baffles me is why that kind of marketing is allowed to persist within NHS hospitals. I am not going to press the amendment today but I very much hope that we can progress further, certainly in pressing the Department of Health to be much more robust than appears to be the case about this kind of marketing.
Whatever the form of marketing which is an arrangement between a hospital and a firm of solicitors —perhaps advertising law firms within hospitals or allowing texting—it certainly falls morally within the terms of the kind of action that we are trying to prevent within this clause. It therefore really should be covered, and if there is that power within the department —or indeed by any future regulator under the health Bill that has now passed—I very much hope that it will be exercised and that my noble friend the Minister’s department will keep pressing the Department of Health. Perhaps we might even bring this back for an assurance on Third Reading, to understand exactly what is being authorised if there is such a thing as authorised marketing of this kind. In the mean time, I beg leave to withdraw the amendment.
Lord Bach
My Lords, we congratulate the noble Lord, Lord Pannick, from these Benches. I thank him very much for his well deserved tribute to my noble and learned friend Lord Goldsmith. I have to say that I felt a slight tremor of envy when I saw this amendment on the Marshalled List. I have tried throughout the Bill to put forward an amendment that might have the name of the noble Lord, Lord McNally, attached to it, but have failed miserably. The noble Lord, Lord Pannick, makes one attempt and it succeeds.
Lord McNally
My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.
I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.
Lord Pannick
I renew my thanks to the Minister. He is absolutely right; those advising him did indeed improve the drafting of the amendment and I am very grateful to them as well.
Lord McNally
My Lords, the noble Baroness, Lady Corston, said that she had discovered over the years that she had become not only an adjective but a noun as well. I told her last week when we met that she was well on her way to becoming a national treasure—something I would not wish on anybody. Her report was certainly a landmark report. It is required reading for me and I listen carefully whenever she speaks and when other experts in the House speak on this subject. I also listen carefully to criticisms such as those recently made by Nick Hardwick and repeated today by the noble Baroness, Lady Stern.
I should like briefly to mention our response to those criticisms, and particularly to his criticism of the Keller unit. This is being reviewed and a number of recommendations have been suggested. The potential for the provision of updated facilities to supplement or replace the Keller unit is being reviewed by the National Offender Management Service. However, the majority of recommendations have been actioned, including the development of healthcare and support, including mental health, first aid, training in positive behaviour, support methods, the presence of a registered mental health nurse seven days a week, structured therapeutic programmes provided by mental health occupational therapists and a co-ordinated approach to the clinical review of patients. There is also the introduction of a programme of structured intervention on a daycare basis that is accessible to the residents of the Keller unit. Steps have been taken to ensure the timely sharing of records between mental health and primary care teams. The new governor of HM Prison Styal is currently reviewing the role of the Keller unit, alongside the development of other specialist accommodation in the prison to meet the needs of women with a range of complex problems. The review will continue, and the prison is currently bidding for funding to establish a therapeutic unit.
I emphasise from this Dispatch Box the importance I attach to a strategic and coherent policy addressing the problems of women at risk and the problems of women in prison and on release. The noble Baroness, Lady Gould, and the noble Lord, Lord Wigley, gave us the statistics that underline the importance and urgency of this matter. As the noble Baroness, Lady Corston, mentioned, I had an interesting and informative meeting with Peers and stakeholders last week on the occasion of the fifth anniversary of the Corston report. The noble Lord, Lord Judd, paid tribute to the long-term interest of the noble Baroness in these issues. My interest has grown with every month that I have been in office, every visit I make and every meeting I hold. As has been said, we have too many women in prison and we intervene too late.
However, I do not believe that a women’s justice policy unit bringing together officials from several government departments, as proposed in this amendment, is necessary. That approach was tried a few years ago, but I understand was discontinued after a year or so. I can reassure the House that there continues to be a dedicated resource to women offenders within the Ministry of Justice. However, rather than co-locating staff from other government departments into the Ministry of Justice, officials now work closely with a wide range of rehabilitation reform policy leads in those other departments who are best placed to address the needs of women offenders in their policy areas, including health, employment and homelessness. These close working relationships across departments help to ensure that the needs of women offenders are embedded in cross-government policy-making.
As I explained in Committee, this cross-government approach receives strong leadership from the Minister for Prisons and Probation, my honourable friend Crispin Blunt, who works closely with his ministerial colleagues, in particular the Minister for Women and Equalities and the Parliamentary Under-Secretary of State for Equalities. The amendment suggests that the policy unit would report and be answerable to an interministerial committee. I do not believe that we need any additional interministerial governance for the women’s agenda. The Inter-Ministerial Group on Equalities, on which Ministry of Justice Ministers sit, has responsibility for driving forward the Government’s equality strategy, including strategic oversight of issues affecting women. Departments also work together through the Cabinet Committee on Social Justice and the All-Party Parliamentary Group on Women in the Penal System.
Finally, let me assure noble Lords that officials are already delivering effectively the functions envisaged for the new policy unit. As I explained in Committee, we already have and are delivering a strategy for women offenders. This ensures that women will benefit in key areas such as mental health, drug recovery, tackling violence against women, troubled families and employment. It recognises the important role of women’s community services, as well as the good work by NOMS to implement many of the recommendations in the noble Baroness’s report. We also actively consider gender equality as required under the Equality Act 2010. We are committed to monitoring progress on achieving key outcomes for women offenders in all areas of our approach to rehabilitating offenders. For example, in setting out our plans radically to reform criminal justice through improved punishment, payback and progression of offenders, we have looked very carefully at how these reforms will impact on women, and have given a clear commitment that we will take into account the different profile of women offenders in achieving this, including the reasons underpinning their offending. I believe that there is effective provision to ensure that the Government are held to account for progress against this agenda.
The noble Lord, Lord Ramsbotham, gave us a long list of titles and initiatives, but he also pointed out that nothing has happened. What we need is what the noble Lord referred to: a drive to get it done. I believe that this is what the Government are doing—a drive to do practical things. In Committee, I undertook to consider what more we could do to communicate our priorities for women because, as I have emphasised, I believe that the priorities and policies are already in place. While I do not believe that we need a statutory requirement to report annually to Parliament on our work, I have agreed with my honourable friend Crispin Blunt that we will publish a short document setting out our strategic priorities for women. We will place this on the Ministry of Justice website for easy reference. It will be a live document that can be updated as necessary and will be available to promote questions and debate both in this House and the other place on the progress being made. We will continue to listen to noble Lords on this important issue. Noble Lords sometimes overemphasise the importance of writing things in the Bill. I believe the greater importance is, in the words of the noble Lord, Lord Dholakia, in achieving outcomes.
I have listened carefully to this debate. It has been an excellent debate, and I think it will read well outside. I honestly do not believe it is a matter on which the House should divide. I am not in a position to accept the amendment and, therefore, if the noble Baroness does press it, I shall ask my noble friends to vote against it. I would rather urge her to withdraw it in the spirit in which this debate has taken place.
I have said that we will publish a strategic document. It will be a short document setting out our strategic priorities for women. It will be a live document and will be updated. I believe that goes some way towards what the House has been asking for. I believe also that what we are doing in practice meets the demands that have been before the House today. In that spirit, I urge the noble Baroness to withdraw her amendment.
Baroness Corston
My Lords, I am grateful to noble Lords on all sides of the House who have spoken in support of this amendment. I am grateful to them for highlighting the profile of the women about whom we talk. They are poor, they are mothers, they are mentally ill, they are alcoholics, they have very little education, and they have no life skills. They are in prison for an average of 28 days, at the end of which they have lost their homes and children and generally do not get either back. It is a huge social issue, and this is the place where it can be resolved.
I have to say that the Minister is badly advised. One of the reasons progress was made from 2007 was because a women’s criminal justice policy unit was established, and because there was an interministerial group run by Maria Eagle, who harried officials, organisations and NOMS to make sure that this happened. On her watch, more than 30 so-called Corston women’s centres were set up across the country to reduce women’s offending, with spectacularly wonderful results.
To say that there was not an interministerial group is not right. Nor is it right to say that there was not a unit, in that I know that the people working in that unit from different departments made things happen. Indeed, collocation of staff from different agencies in youth offending teams and the Youth Justice Board was the key to getting agencies to work together. If you do not have that nationally, it will not be reproduced regionally and locally.
As the noble Baroness, Lady Stern, who I think of as a friend, said, you can make progress but you can quickly revert. All I say to the Government is that quick reversion is what will happen. I am sorry to sound so passionate, but it is because I feel passionate. I wish to test the opinion of the House.
Lord McNally
Lord McNally
My Lords, this group of government amendments contains a number of minor and technical amendments to suspended sentence orders, detention and training orders, youth remand, and the release and recall provision. This group also contains a few substantive amendments to youth remand. Last week, I wrote to all Peers about these amendments, and a copy of the letter has been placed in the House Library. The youth remand-related substantive amendments in this group mean that any imprisonable offences committed while a young person was remanded in prison will be taken into account in order to determine whether a young person has a history of relevant offending.
Amendments 152ZB and 152BZA remove two provisions that are no longer necessary. Clause 75(10) and paragraph 20 of Schedule 9 contain amendments to the Armed Forces Act 2011. The effect is to modify amendments that Schedule 3 to that Act makes to the Armed Forces Act 2006. This was to ensure that those amendments would work if this Bill came into force before the 2011 Act. In fact, the amendments in the 2011 Act will come into force on 2 April 2012, which makes Clause 75(10) and paragraph 20 of Schedule 9 redundant.
Amendments 152YH to 152YQ are technical amendments that will ensure that Armed Forces legislation properly reflects the changes that the Bill makes to the release provisions in the Criminal Justice Act 2003. The Bill makes changes to Section 240 of the 2003 Act on how relevant periods of remand time are credited towards a prisoner’s sentence, and in Schedule 15 makes certain transitional arrangements. These amendments ensure that these changes are also reflected in the equivalent Armed Forces legislation.
Substantive Amendments 152H, 152K, 152P, 152T, 152U, 152W, 152X, 152YD and 152YF in combination provide that where a young person who is being dealt with under the remand provisions of the Bill has previously committed imprisonable offences while remanded in prison under the current law, such offences can be taken into account when determining whether they reveal a relevant history of offending such that the court may impose electronic monitoring or remand to youth detention accommodation.
Currently, 17 year-olds are treated as adults for remand purposes and can be remanded only to prison. In addition, 15 and 16 year-old boys not deemed vulnerable and made subject to secure remand must also be remanded to prison. Offences committed in prison are not taken into account for the purpose of establishing a history under the equivalent tests in the current legislation, but the restructuring of the remand framework is based on the principle that all under-18s should be remanded according to the same test. Under the new remand framework, remands to prison for under-18s will cease.
These amendments are necessary to ensure that courts remanding offenders under the new framework will take into account any offences committed while an under-18 was previously remanded to prison under the old remand framework. They will ensure that all under-18s subject to the new remand framework or who may be considered for an electronic monitoring requirement on bail are treated equally.
I said before that these are mainly technical amendments, that I wrote to all Peers about them last week, and that a copy of the letter has been placed in the House Library. I beg to move.
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord Beecham
My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.
I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.
Lord McNally
My Lords, we keep coming round to these amendments from the noble Lord, Lord Ramsbotham. As he said, we have had debates in this House and bilateral meetings about them. There is a certain disagreement. The noble Lord, Lord Ramsbotham, seems to think—and I am sure that this will provoke him to get to his feet to say that I have got it wrong—that we have to have a strategy and a command structure and, after that, all will be well. I am old fashioned enough to believe that the buck stops with the Minister. The constant desire to have strategies is not a real substitute for doing things.
Having said that, I said earlier today that you do not have to be in this job long before you realise that we have too many women in our prisons. Neither do you have to be in this job very long to see that the 18 to 24 year-old age group among males is a key area for criminal behaviour. Therefore, we have to think very hard about how we break this cycle of criminality. The noble Baroness, Lady Linklater, acknowledges that this is a difficult group. I cannot quite agree with her about regretting that she is no longer a teenager. I would like to be a teenager again, but knowing what I know now. It is a pity that life does not give you that particular deal.
Lord Beecham
Does the noble Lord want to revert to membership of the young socialists a little bit?
Lord McNally
I said that if I knew then—let me get back to the speech. The noble Lord, Lord Ramsbotham and the noble Baroness, Lady Linklater, acknowledged that the group we are discussing is a difficult one but that many of the ideas for dealing with it are extremely expensive. We are trying to deal with it but the Government’s view is that it is not appropriate to prescribe in detail from the centre processes which purport to improve outcomes. Such a way of working would lead to inflexibility and take up resources which are better deployed elsewhere. We are looking wherever possible to empower local decision-making and delivery by prison and probation trusts so that they use resources in a way that responds to local priorities. That also fits with our policy for the management of young adult offenders as individuals based on an assessment of risks and needs rather than their age.
Lord Ramsbotham
My Lords, I expected that response. However, I remind the Minister that I have worked in Whitehall for many years. I do not disagree with him about Ministers being responsible; of course they are, but the question is how do they exercise that responsibility? They cannot do it on a 24 hour, seven days a week basis because they have many other things to do. Therefore, they need a structure to help them do it. The noble Lord referred to a command structure. You can call it what you like but it is a matter of people being responsible and accountable to a Minister for making certain that what the Minister wants to happen does happen. That happens everywhere—in schools, hospitals, businesses and the Armed Forces, but it does not seem to happen in the Prison Service.
I am very concerned about disseminating all responsibility down to the local level. I have said many times in this House that two things are involved in this. One is the question of what should be done, which is the central responsibility, but how it is done is the local responsibility. If you get that the wrong way round and nothing but “how?” comes out from the centre at the top and all the “what” is left down below in the local areas, you get confusion. People in the local areas need to know what they have to do. They should be allowed to disburse their resources locally as there will be different needs in different areas. That again seems to me common sense because unless you have a “what?” coming down, nobody knows where they are going. I have spoken to the chairman of the Youth Justice Board, and I understand that that body would be more than happy to tackle this measure. However, the chairman made the point that she did not want the youth offending teams involved in working with this age group. I accept that entirely. However, the success of the intensive schemes pioneered by the probation service shows that it is taking a keen interest in this group, and I see no reason to interrupt that. Therefore, it seems to me that the framework is there.
The Minister mentioned that a lot of things are going on but was not very specific. In the same spirit in which we have met to talk about many issues after Committee, can we meet to discuss this matter as it is far too important just to be left in the air at half past eight at night without, frankly, it being completely clear? I understand what he says about payment by results.
Lord McNally
I am very willing to meet. The noble Lord knows how much I value his experience, expertise and commitment in this area. I am happy to meet him to discuss this matter as often as he likes. However, later this week I will be sitting down with ministerial colleagues to discuss a detailed report on the various areas of MoJ business with the civil servants with direct line responsibility for them. We will have gone through policy areas and will be looking at various policy outcomes. The idea that somehow the National Offender Management Service is drifting somewhere outside ministerial control or accountability or that it is not being set various tasks and responsibilities is just not true.
On the other side, as has been acknowledged, we are dealing with very difficult and straitened times. The resources available to target this area are extremely limited. We shall see whether we can involve payment by results as one way of getting good results and resources into this area. We do not doubt the problem. I am very willing to continue to have discussions with the noble Lord, but I do not want to give him any false hope that we can go down this way in this Bill.
Lord Ramsbotham
I thank the Minister for that reply. In no way am I seeking to interfere; I am merely seeking to ensure that our commitment to this very important problem is properly recognised because we wish to share everything that he has shared with us that has come up from below to ensure that due account is given when we get an opportunity to do so.
I am not going to talk about payment by results because, as the Minister says, this is early days and the Government have set their sights on it; they have pilot schemes in place and we shall know more. It is premature to take more than that, other than to reflect concerns that are being reflected to me by people who have to operate it on the ground, particularly the small voluntary organisations which operate in this area and which are finding it enormously difficult to survive. In view of the fact that there is so much to play for in this area, it would be sensible to continue the dialogue. Therefore, I wish to withdraw the amendment.
Lord Bach
My Lords, I will comment briefly. My noble friend Lord Ponsonby made a good point. The question is whether the Bail Act 1976, which as he said has worked pretty well in a practical way at various levels—although no one would claim that it is perfect—needs to be changed by what appears at first blush to be a rather superficial alteration.
I am concerned about the matters raised by my noble friend, to which I hope the Minister will respond tonight, and about the prospect of a custody test and the expectation that a defendant will be given if he is granted bail on the basis that he will not receive a custodial sentence, because it may become absolutely apparent at the time of sentence, for whatever reason—and anyone who has been in a court knows that the facts sometimes do not emerge until very late on—that although the defendant’s expectation is that he will not get a custodial sentence, the court would not be doing its duty unless it gave him one.
The expectation that someone will have once they have been given bail is that they will not—to use common parlance—go down. In my view that is the wrong way around. Magistrates’ courts or Crown Courts should have the discretion that they enjoyed under the Bail Act 1976 to do what they consider to be right in the circumstances, subject to the terms of the Act. Therefore, my view is that the case for change has not been made, and that what is proposed is very superficial.
Lord McNally
I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.
The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.
The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.
We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.
The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.
I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.
Lord Ponsonby of Shulbrede
I thank the Minister for that response. I make the point that the Magistrates’ Association and every magistrate I have ever sat with do not want to put people in custody, and the whole purpose of my speech was to point out inconsistencies and a lack of clarity in these proposed changes. Nevertheless, I thank the Minister for offering to respond to my specific questions, and I beg leave to withdraw my amendment.
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
“( ) Section 246 (crediting of time in service custody: terms of imprisonment and detention) is amended as follows.
( ) For subsections (2) to (5) substitute—”
Lord McNally
Lord Bach
My Lords, I can be very brief because the speeches that have been made set out the case very well indeed. Proper caution has been taken in the way in which the amendment has been worded. We all know that the people whom we are talking about have committed the most terrible offences and in many cases—in practically every case, I suggest—it may well be, given the caution included in the wording of the proposed new clause, that these people will stay in prison for the rest of their lives. All that the noble and learned Lord is asking, as a matter of principle, is that for anyone after they have served—this is the caution— 30 years of a sentence,
“it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice”—
of the day, presumably—
“and the trial judge if available, to refer the case to the Parole Board”.
Surely we have trust and faith in the Parole Board. The Parole Board has to be satisfied that,
“it is no longer necessary for the protection of the public that the prisoner should be confined, and … that in all the circumstances the release of the prisoner on licence would be in the interests of justice”.
My argument is that the Parole Board has to make hard findings in any case, particularly in cases of this kind. Even if the Parole Board is satisfied on these matters, the amendment says only that it “may direct his release under this section”.
The amendment is extremely cautious, but it is humane, in the way that has been described, for people who sometimes may seem not to deserve the protection of a humane state. However, we live in one, and surely the point of the penal policy is for it to be humane when it can be.
I listened carefully to what the Minister said in response to this matter in Committee and it seemed to me then that the Government’s real case is—I put it crudely—that the Daily Mail would not like it. If that is really the level of the argument that the Minister is going to put again today, it is quite unsatisfactory for a matter of principle of this kind. I hope that, if the Minister opposes the amendment, he will find a better argument than that.
Lord McNally
My Lords, the better argument is that if I accepted the amendment, the Labour Party would, as it has done on most law and order issues over the past 20 years, try to outbid the hard right to the right. If the noble Lord is announcing a new Labour Party policy on this issue, I shall give way. No, he is not, so let us not go too far down that road.
I acknowledge that this is a cautious amendment. We have heard from some very distinguished and learned Members of the House and I shall not try to match them in legal skills. However, I have been around politics for quite a few years and, in many ways, one has to make political judgments. If we had been debating this in the 1960s along with Sydney Silverman or in the 1970s with Roy Jenkins, we might have found a political atmosphere in which to discuss these issues. Sadly, things have moved on since then and if you are a legal reformer like me you try to make progress where you can.
Part 3 of the Bill carries us forward significantly in two areas of legal reform: reform of IPPs, which we will be discussing later, and the Rehabilitation of Offenders Act. I believe that those are worthwhile measures. I do not think that we are in a position at the moment to move as far as this amendment suggests, cautious though that may be in rational terms. Just as there are passionate arguments about the possibility of ultimate rehabilitation for even the most dangerous offenders, there are equally passionate arguments that there are some prisoners who should never be released under any circumstances. Both views were reflected in the debate in Committee. I do not think that we are in a position—never mind the opinion of the other place—to carry public opinion with us on this matter.
Lord McNally
Lord McNally
Lord Lloyd of Berwick
As the House will remember, Clause 117 provides that if a person has been convicted of a listed offence for which he has been sentenced to 10 years or more and then commits a further offence for which he might expect at least a 10-year sentence in prison, then he “must” be sentenced to life imprisonment unless it would be unjust to do so.
I described this clause in Committee as being pointless and indeed it is, but I now suggest that it is worse than pointless. In Committee, the Minister described the clause as introducing a new mandatory life sentence, and he placed particular emphasis on “mandatory” to show, no doubt, that the Government in this respect are being tough on crime. But a mandatory sentence is one that the court is obliged to pass, like the mandatory sentence of life imprisonment for murder. This clause is quite different from that.
Despite the use of “must”, the clause recognises that the judge will in fact pass the sentence which, in the particular circumstances, he believes to be the just sentence. That is exactly what judges always do when sentencing. Why then do the Government persist in calling it a mandatory sentence? It cannot surely be in order to create some sort of presumption that a life sentence should be passed. How would the judge begin to know what weight to give to such a presumption? Calling it a mandatory life sentence and the use of “must” in the light of the judge’s ability to pass the sentence he believes to be just is simply a contradiction in terms. To create contradictions in terms in all legislation is a mistake, particularly in legislation of a criminal kind which has to be interpreted by the courts. What the clause could have said was that the court “may” pass a life sentence in these circumstances. That would at least serve some purpose because it would cover those rare cases where the second offence does not carry with it a life sentence as its maximum. As it is, the clause is not only pointless for the reasons I have gone into but it is also ambiguous.
I have one other point. Do we want to create more life sentences? I look round to see if the noble Baroness, Lady Stern, is here and I do not thinks she is, so I will make the points which I know she would have made. She quoted what are on any view some very surprising figures that we have in England and Wales 7,663 persons serving life sentences. The figures, which have been provided by the Council of Europe, show that, whereas we have 12 lifers for 100,000 members of the population, for France the proportion is 0.85 per cent, for Germany it is 2.4 per cent, for the Netherlands it is 0.14 per cent, and for Sweden it is just over 1 per cent. The conclusion from these figures is inevitable. We have far too many prisoners serving life sentences when a long determinate sentence would do just as well. As for deterrence, it is very fanciful to suppose that a prisoner having served 10 years already would be deterred by the prospect of a life sentence rather than a long deterrent sentence and decide thereafter to go straight.
As for Amendment 157, we have a new Clause 134 which creates an offence of threatening with a knife. It too carries a mandatory sentence and, as such, suffers from all the defects which I have already mentioned in the earlier debate. It is even more pointless for the reason that we already have an offence of carrying a knife in a public place under the Criminal Justice Act 1988. It carries a maximum sentence of four years. In 2003 the Court of Appeal issued guidelines in which it said that if the knife was used to threaten, then the sentence should be towards the upper end of the scale. What, then, can be the purpose of now creating a new offence of threatening with a knife, carrying the same maximum sentence of four years? Clause 134 is exactly covered by the existing legislation. Its only purpose I can see is, as I have said before, to give the impression that the Government are doing something about knife crime. If they think that, then they deceive themselves. The only way to do anything about knife crime, as I mentioned in Committee, is to do what has been done in Glasgow and that is to get in among the gangs who use these knives. There, knife crime has been reduced by an astonishing 82 per cent. That is the way to reduce knife crime, not cluttering up the statute book with unnecessary provisions such as this. I beg to move.
Lord McNally
My Lords, a concern expressed by some noble Lords in Committee seemed to be that the new mandatory life sentence would be pointless—a word that the noble and learned Lord used several times—because courts will not have to apply it if it would be unjust to do so. It is right to say that the court will retain a discretion not to impose the new mandatory life sentence when the particular circumstances of the offence or the offender would make it unjust to do so. But that is very far indeed from meaning that the sentence is pointless. Save for murder, all mandatory sentence requirements on the statute book contain an exception of this kind. It is done so that mandatory sentence requirements will be compatible with human rights, and to prevent arbitrary sentencing, which cannot take any account of specific and individual circumstances. It is clearly not a permission or excuse for the court to do away with the mandatory sentence requirement. We expect that in the majority of cases the exception will not be engaged at all.
Last summer we made a commitment to introduce a tougher determinate sentencing regime to replace IPPs. A key element of that regime is mandatory life sentences for the most serious repeat offenders. The mandatory sentence requirement in Clause 117 will ensure that the worst repeat sexual and violent offenders receive a life sentence.
Amendment 157 would remove Clause 134, a new knife offence, from the Bill. The noble and learned Lord, Lord Lloyd, argued in Committee that the two new offences in Clause 134 are adequately covered by existing legislation and that, therefore, there is no reason for creating them. It is true that unlawful possession of a knife or offensive weapon is already a serious criminal offence which carries a maximum custodial sentence of four years. The intention of Clause 134 is to strengthen this existing legislative framework by targeting behaviour that amounts to more than simple possession but does not go so far as resulting in injury to the victim. The new offence will complement the existing offences of possession, which deal with those who carry offensive weapons or bladed or pointed articles in public places or schools without lawful authority, or reasonable excuse or good reason. It will do so by targeting behaviour that goes beyond possession, specifically targeting instances where an individual brandishes a knife or weapon, threatening another and placing them at immediate risk of serious physical harm. We want to send a strong message that this type of behaviour will not be tolerated. The minimum sentence attached to the new offence drives home the point that this kind of behaviour is extremely serious, even if it does not carry through into causing actual physical harm. Indeed, threatening people and placing them in fear of serious physical harm is serious enough that people should expect to face custody if they act in this way.
I know that the noble and learned Lord is particularly concerned about the minimum sentence for 16 and 17 year-olds contained in the new offences. I understand his concern, but in the other place my right honourable friend the Lord Chancellor made it clear at Third Reading that the Government had listened carefully to the arguments made in support of extending a minimum custodial sentence to all those under 18. The Government had then decided, on balance, that it would be appropriate to extend the minimum sentence to the narrower group of 16 and 17 year-olds who commit these offences. The Government have not made the decision to create these offences lightly, but consider it appropriate to have minimum sentences set out in legislation when a particular offence demands a firm and unequivocal response.
The Government cannot accept this amendment. To do so would undermine the strong message sent by this clause. We need this to complement the much wider range of initiatives we have in place to address problems posed by people who unlawfully carry or use knives in our communities. We believe that, in respect of 16 and 17 year-olds, Clause 134 strikes the right balance. I urge the noble and learned Lord to withdraw his amendment, and that this clause and Clause 134 should remain in the Bill.
Lord McNally
Lord McNally
Lord McNally
“(10) In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence.(11) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1)(c) has effect as if the words “by section 224A or 225(2)” were omitted, and(b) subsection (6) has effect as if the words “in compliance with section 153(2)” were omitted.”
Lord Dholakia
My Lords, Clauses 118 and 119 deal with the new extended sentence and release on licence matters. I do not question the Government’s intention in what they are trying to achieve, but I do question the discrepancy that these clauses would create. My amendments would give the courts discretion over the release date of offenders given extended sentences. In appropriate cases, courts would be able to retain the current position whereby prisoners serving extended sentences are released after half the sentence. In other cases, where the court considered it necessary, it could specify that the offender will not be released until he or she has served two-thirds of the sentence.
At present, prisoners serving determinate sentences are released on licence after serving half the sentence in custody. This also currently applies to offenders serving extended sentences. Up to now, the point of an extended sentence has not been to increase the period which offenders spend in custody. Extended sentences are currently intended to make sure that when offenders who pose a risk to the public are released, they are subject to a longer period than usual of post-release supervision on licence. This means that they are subject to restrictive conditions and controls at the same time as receiving constructive rehabilitative help from the probation service. If offenders breach the conditions of their licence, they can be recalled to prison. This is a very useful provision which means that society maintains control over these offenders’ behaviour for a long period. However, the Bill would increase the time which an offender given an extended sentence spends in prison by stipulating that all extended sentence prisoners will not be released until the two-thirds point of their sentence.
When we debated this matter in Committee on 9 February, my noble friend Lord McNally explained the Government’s view that this would be appropriate for some prisoners who would now be given IPP sentences. However, the change in the Bill will not apply only to offenders who would now receive an IPP sentence. It will also apply to people who would currently receive an extended sentence. In future, these offenders will also have to serve longer in custody if this provision in the Bill remains unchanged. The Government have produced no explanation to demonstrate why it is necessary to change the rules for prisoners of the type who would now receive an extended sentence.
As the Bill stands, a court wishing to impose an extended period of post-release supervision will be able to do so in future only if it passes a sentence which also increases the length of time spent in custody before release to two-thirds of the sentence. If a judge does not want to increase the time that the offender spends in prison but simply wants to make sure that he or she has an extended period of supervision on release, why should he not be able to order this as he can under the current provisions for extended sentences?
When I moved a similar amendment in Committee on 9 February, my noble friend Lord McNally said:
“I listened to my noble friend’s idea about discretion … I will ponder this one between now and Report”.— [Official Report, 9/2/12; col. 467.]
That is the stage we have reached. These amendments give my noble friend the opportunity to let us know the result of his thinking on my suggestion. I beg to move.
Lord McNally
My Lords, I was teased earlier in the day about my Labour and trade union past. One quote that sticks in my mind is from the great TUC general secretary George Woodcock, who once said that good trade unionism is a serious of squalid compromises. Sometimes law reform or criminal justice reform is a series of compromises. The noble Lord, Lord Bach, shakes his head. Of course it is. We have to carry Parliament with us, we have to carry the various parts of the coalition Government with us, and we have to carry public opinion with us. Reflecting on my noble friend’s amendment, when we announced our decision to reform the Rehabilitation of Offenders Act, one of the campaigning groups rang up and said, “But you have not gone as far as Labour promised in their 2002 White Paper”. That is true, but we were reforming the Act for the first time in 37 years. Labour had talked big and done nothing.
A key element of our IPP replacement regime is the new extended determinate sentence for dangerous offenders. On this sentence, the offender will always serve at least two-thirds of the custodial term in prison. In the most serious cases early release will be at Parole Board discretion. This means that offenders stay inside until the end of that term. My noble friend has proposed that the court should have a discretion as to whether the minimum time in prison offenders on the new extended sentence should serve is one-half or two-thirds of the custodial term. He has explained that one of his key concerns is that there should be an appropriately long licence for the offender without the need to increase the period spent in prison. I have written to my noble friend to address the point regarding the licence.
The new extended licence consists of a custodial term set by the court, during which—or at the end of which—release will occur. This must then be followed by an extended period of licence, which is also set by the court, and may be up to five years in length for a violent offence and eight years in length for a sexual offence. The courts will base the custodial term on seriousness and factors relevant to that. The extended licence period will address risk. As the proposals stand, the court should be able to impose a sentence that will require a suitably long period of licence regardless of when during the custodial term the offender is released. Therefore, I do not think there is a problem with licence, but if there were I am not sure that this amendment would be the solution. It would be entirely possible for a serious offender to remain in prison until the end of the custodial term regardless of the point at which he becomes eligible for parole.
I also note that this would be a new decision for judges, and it is not clear on what basis they would make it. Seriousness and risk management are already addressed by the decisions the court will already make in relation to the sentence. Asking them to decide additionally between different sentence formats would seem to make this a very complex sentencing decision.
Finally, as I have said before, in June last year the Government committed to introducing a tougher determinate sentencing regime to replace IPPs. A key part of that tougher regime is that those on public protection sentences, now that they are no longer liable to receive IPP sentences, will spend more of their determinate sentence in prison. We think this is needed to enhance public protection and deliver public confidence. It will provide more time for offenders and the National Offender Management Service to work towards rehabilitation. I know that my noble friend and his friends in NACRO will continue to campaign on these issues and it is right that they should do so. However, I hope that my noble friend will feel able to withdraw his amendment.
Lord Dholakia
My Lords, I thank the Minister for his explanation. I am delighted with the information he has given. It is always nice to niggle him from time to time so that we can hear some lovely anecdotes. As long as he keeps bashing the Labour Party, I have no reason not to withdraw the amendment.
Lord McNally
“(8) In subsections (1)(a) and (6), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence. (9) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1) has effect as if paragraph (c) were omitted, and(b) subsection (4) has effect as if the words “in compliance with section 153(2)” were omitted.”
Lord McNally
Lord McNally
“4 (1) Section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence imposed as well as driving disqualification) is amended as follows.
(2) In subsection (4)(e)—
(a) for “227” substitute “226A”, (b) for “half” substitute “two-thirds of”, and (c) for “227(2C)(a)” substitute “226A(5)(a)”.(3) In subsection (4)(f)—
(a) for “228” substitute “226B”, (b) for “half” substitute “two-thirds of”, and(c) for “228(2B)(a)” substitute “226B(3)(a)”.(4) In subsection (8) omit “or 247(2)”.
(5) In subsection (9) omit paragraph (b).”
Lord McNally
Lord McNally
“Sections 116, 118 and 119: consequential and transitory provision
Schedule 20 (abolition of certain sentences for dangerous offenders and new extended sentences: consequential and transitory provision) has effect.”
Lord McNally
“2 (1) Section 237 (meaning of “fixed-term prisoner” etc) is amended as follows.
(2) In subsection (1)(b), before “227” insert “226A, 226B,”.
(3) In subsection (3), before “227” insert “226A or”.”
Lord McNally
“Dangerous offenders subject to service law etc
Schedule (Dangerous offenders subject to service law etc) (dangerous offenders subject to service law etc) has effect.”
Lord Beecham
My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.
Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.
Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.
Lord McNally
My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.
The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.
In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.
I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.
On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.
On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.
My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.
Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.
I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.
Lord Thomas of Gresford
My Lords, I believe that I should reply first. The Minister’s response was encouraging. He said that Ministers were here to be questioned. I shall make a note in my diary to put in a Written Question every six months, asking for the information—or something like it—that I seek in the amendment. It is very important that a close eye is kept on those who remain under an IPP sentence but whose tariff has expired. I beg leave to withdraw my amendment.
Lord McNally
Lord McNally
“Scrap metal dealing: increase in penalties for existing offences
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) For the following words (which have effect as references to a fine not exceeding level 3 on the standard scale) substitute in each case “a fine not exceeding level 5 on the standard scale”—
(a) in section 1(7) (dealer failing to register) the words from “a fine” to the end;(b) in section 2(6) (dealer failing to record dealings) the words from “a fine” to the end;(c) in section 3(4) (itinerant collector failing to keep receipts) the words from “a fine” to the end;(d) in section 4(4) (convicted dealer failing to meet additional requirements) the same words before “and the court”.(3) For the following words (which have effect as references to a fine not exceeding level 1 on the standard scale) substitute in each case “a fine not exceeding level 3 on the standard scale”—
(a) in section 1(8) (dealer failing to give notice of cessation of business) the words from “a fine” to the end; (b) in section 5(1) (dealer acquiring metal from a person under 16) the same words before the proviso;(c) in section 5(2) (selling metal to a dealer under a false name or address) the words from “a fine” to the end;(d) in section 6(5) (obstructing entry and inspection) the words from “a fine” to the end.”
Lord McNally
“Offence of buying scrap metal for cash etc
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) After section 3 insert—
“3A Offence of buying scrap metal for cash etc
(1) A scrap metal dealer must not pay for scrap metal except—
(a) by a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable, or(b) by an electronic transfer of funds (authorised by credit or debit card or otherwise). (2) The Secretary of State may by order amend subsection (1) to permit other methods of payment.
(3) In this section paying includes paying in kind (with goods or services).
(4) If a scrap metal dealer pays for scrap metal in breach of subsection (1), each of the following is guilty of an offence—
(a) the scrap metal dealer;(b) a person who makes the payment acting for the dealer;(c) a manager who fails to take reasonable steps to prevent the payment being made in breach of subsection (1).(5) In subsection (4)(c) “manager” means a person who works in the carrying on of the dealer’s business as a scrap metal dealer in a capacity, whether paid or unpaid, which authorises the person to prevent the payment being made in breach of subsection (1).
(6) Subsection (1) does not apply if—
(a) the payment is made in the carrying on of the dealer’s business as a scrap metal dealer as part of the business of an itinerant collector, and(b) at the time of the payment an order under section 3(1) is in force in relation to the dealer.(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(8) An order under subsection (2) is to be made by statutory instrument.
(9) A statutory instrument containing an order under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
(3) Section 2 (records of dealings) is amended as follows.
(4) After subsection (2)(d) insert—
“(da) where paragraph (d) applies, any part of the price that is unpaid at the time when the entry is to be made;”.(5) In subsection (2)(e) for “the last preceding paragraph” substitute “paragraph (d)”.
(6) After subsection (4) insert—
“(4A) If a scrap metal dealer pays at any time for scrap metal falling within subsection (1)(a)—
(a) the dealer must keep, with the book containing the entry relating to receipt of the scrap metal, a copy of the cheque (if the payment was by cheque), or any receipt identifying the transfer (if the payment was by electronic transfer and such a receipt was obtained), and(b) the particulars required by this section to be entered include those listed in subsection (4B). (4B) The particulars are—
(a) the full name and address of any person who makes the payment acting for the dealer;(b) the full name and address of the person to whom the payment is made;(c) in the case of an electronic transfer where no receipt identifying the transfer was obtained, particulars identifying the transfer.(4C) Anything kept by virtue of subsection (4A)(a) must be marked so as to identify the scrap metal by reference to the entry relating to receipt of the metal.
(4D) An entry in pursuance of subsection (4A)(b)—
(a) must be made immediately after the payment is made, and(b) if not made at the same time as the entry relating to receipt of the scrap metal, must identify the metal by reference to that entry.”(7) In subsection (5), after “this section and” insert “the book and anything required by subsection (4A)(a) to be kept with it”.
(8) Section 3 (special provisions as to records in certain cases) is amended as follows.
(9) In subsection (5)(d), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(10) In subsection (6)(a)—
(a) after “books” insert “, and the obligation imposed by subsection (4A)(a) of that section to keep anything with a book,”;(b) after “the like particulars” insert “, and to keeping the same things,”;(c) for “and (3)” substitute “, (3) and (4A) to (4D)”.(11) In subsection (6)(c), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(12) In section 4(1) (power for court to impose additional requirements on convicted dealers)—
(a) omit “or” at the end of paragraph (a), and(b) after that paragraph insert—“(aa) is convicted of an offence under section 3A, or”.(13) Section 6 (rights of entry and inspection) is amended as follows.
(14) After subsection (3) insert—
“(3A) Whether or not a place is one to which a constable has a right of entry in accordance with subsection (1), a justice of the peace may issue a warrant described in subsection (3B) if satisfied by information on oath that there are reasonable grounds for believing that the place—
(a) is a scrap metal store where scrap metal paid for contrary to section 3A is or has been received or kept, or(b) is a place to which admission is reasonably required in order to ascertain whether that section is being complied with.(3B) The warrant is a warrant signed by the justice issuing it which specifies the place concerned and authorises a constable to enter the place, if need be by force, at any time within one month from the date of the warrant.
(3C) A constable authorised to enter a place by a warrant granted under subsection (3A) has a right—
(a) to inspect that place;(b) to require production of, and to inspect, any scrap metal kept at that place;(c) to require production of and to inspect any book which the dealer is required by this Act to keep at that place and any copy or receipt required to be kept with the book, or, as the case may be, any receipt which the dealer is required to keep as mentioned in section 3(1)(b), and to take copies of the book, copy or receipt;(d) to require production of and to inspect any other record kept at that place relating to payment for scrap metal, and to take copies of the record.” (15) In subsection (4) for “the last preceding subsection” substitute “subsection (3) or (3A)”.”
Lord McNally
“Review of offence of buying scrap metal for cash etc
(1) Before the end of 5 years beginning with the day on which section (Offence of buying scrap metal for cash etc)(2) comes into force, the Secretary of State must—
(a) carry out a review of the offence created by that subsection, and(b) publish a report of the conclusions of the review. (2) The report must in particular—
(a) set out the objectives intended to be achieved by creating the offence,(b) assess the extent to which those objectives have been achieved, and(c) assess whether it is appropriate to retain the offence to achieve those objectives.”
Lord McNally
Lord McNally
My Lords, at this hour of the night I would like to move these government amendments formally but I do not think that I can. Amendment 159 would bring Clause 113 into force on the date of Royal Assent. Clause 113 provides a power for the Secretary of State to remove from the United Kingdom foreign national prisoners serving indeterminate sentences once they have served the minimum term, or tariff, set by the sentencing court. This will be known as the tariff expired removal scheme. By commencing this provision on Royal Assent, it will be possible to begin the process of removals under the scheme from that date. There are a number of IPP and life sentence prisoners with deportation orders served against them who are already past their tariff expiry date. The Government would like to be able to start considering these prisoners for removal under the scheme at the earliest opportunity.
The amendments to Clauses 141 and 142 set out the territorial extent of the Bill. The amendments are to tidy up the clauses in the light of changes made to the Bill during its progress through Parliament and to ensure that provisions are as clear as possible. Amendments 163 and 164 amend the Long Title of the Bill to include the references to the Government’s amendments on scrap metal and magistrates’ courts fines. This is in line with the general rule on making amendments to the Long Title of a Bill to reflect amendments which have been made to the Bill. I beg to move.
Lord McNally
Lord McNally
“(2A) This section does not apply to section (Alcohol abstinence and monitoring requirement) (but see section (Piloting of alcohol abstinence and monitoring requirements)).”
Lord McNally
“(1) Parts 1 to 3 of this Act extend to England and Wales only, subject to subsections (2) to (8).
(2) Sections 122 and 123(1) extend to England and Wales and Scotland.”
Lord McNally
“( ) The powers conferred by sections 177, 178 and 222 of the Extradition Act 2003 (powers to apply provisions to extradition to or from British overseas territories and to extend to Channel Islands and Isle of Man) are exercisable in relation to any amendment of that Act that is made by or under this Act.”
Baroness Howe of Idlicote
My Lords, I very much support this amendment and have put my name to it. It is a great shame that we could not find a way to debate this issue right at the beginning, before we started work on the detailed and different parts of this hybrid Bill. Indeed, many of the debates on today’s amendments—I am not talking about the last two or three, which seem quite beyond the Bill in many ways—illustrate exactly why this amendment is so relevant and important to the Bill. For example, plans to meet women prisoners’ different needs, the debate on restorative justice, better training and rehabilitation plans and post-prison support for young offenders: all of these were about rehabilitation. Indeed, the background to all the work that the Minister has so often talked about is about rehabilitation.
It is quite absurd to be debating what the Title of the Bill should be as we reach the very last pages of the Bill and the very early hour of the following day. If the Minister could accept the amendment, even at this stage, success would have been achieved, giving those who will use the Bill a much better understanding of what it is really about. Above all, it would not have cost the Government one single penny and, over and above that, I am quite certain that the Minister believes—as we certainly do—that in the long run it will save a great deal. I very much hope that he is in a giving mood on this amendment.
Lord McNally
My Lords, I have been wondering whether I dare quote poetry at this hour, but I think noble Lords deserve it. Whenever I hear the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Howe, and the noble Lord, Lord Judd, who I am sure is with us spiritually, I am reminded of these lines from the Rubaiyat of Omar Khayyam:
“Ah Love! could thou and I with Fate conspire
To grasp this sorry Scheme of Things entire,
Would not we shatter it to bits—and then
Re-mould it nearer to the Heart’s Desire!”
Certainly, as I have said before, there is no lack of sympathy with the promotion of the concept of rehabilitation. Indeed, as I have also said before, I believe that those who argue the case for rehabilitation are doing more for victims and more to reduce crime than those to whom the noble Lord, Lord Pannick, referred earlier today as the “throw away the key brigade”. There is no argument between us. The Ministry of Justice believes in rehabilitation, and a large range of our policies are geared to rehabilitation. However, I think most people will look beyond the Short Title of the Bill and judge the Government by their intentions and performance. As many noble Lords have recognised, the Bill contains key measures for the youth and adult criminal justice systems that will contribute to the rehabilitation of offenders. Therefore, although I would very much like to accept this amendment in many ways, I am afraid that the noble Lord, Lord Ramsbotham, is right—I must simply salute, get on with the job and urge him to withdraw the amendment.
Lord Ramsbotham
My Lords, like the Minister, I have to salute and move on. I am very glad for what he said about the essence of rehabilitation because that is hugely important. Even at this late hour, I make no apologies for moving the amendment because it is very important that all that has been said by many noble Lords during the passage of the Bill reflects the heart of what we are trying to do: namely, to secure the rehabilitation of those who end up in the criminal justice system. However, given the reassurance that everyone is trying to do all they can, and given the lateness of the hour, I beg leave to withdraw the amendment.
Lord McNally