Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2022

Debate between Lord Ponsonby of Shulbrede and Lord Dholakia

Thursday 3rd November 2022 Grand Committee

[Lord Dholakia (LD)]

My Lords, I thank the Minister for explaining why this provision is necessary. This SI amends the Rehabilitation of Offenders Act 1974 to enable current or potential sponsors under the Homes for Ukraine scheme to undergo a full criminal background check undertaken by the DBS. In essence, the changes are designed to give local authorities more flexibility to undertake the highest level of DBS checks on sponsors who are related to children under 18 or to relations who require additional support due to age, disability or illness.

As someone who was responsible for promoting a Private Member’s Bill on the Rehabilitation of Offenders Act 1974, I see no reason why this legislation should not be supported. Any legislation to ensure that an applicant who is prepared to can host a refugee is welcome. Currently, the host can undergo an enhanced DBS check when they have an unrelated person under the age of 18 or in rare circumstances when the sponsor is providing additional support to a non-family guest who may have additional needs. If the host houses a related person under 18 or a related person with additional needs, they can currently undergo only a regular DBS check.

Enhanced DBS checks are higher than basic checks and should incur an increased cost for local authorities. At present they bear a heavy cost for looking after refugees and asylum seekers. What provision is available to assist local authorities if the present method of payment is not sufficient? The SI should theoretically grant flexibility for local authorities to process applications for sponsors who live in complicated circumstances where it is not immediately clear which DBS test they should be eligible for. Are there systems to ensure that DBS checks are available for refugees and asylum seekers when accommodation to house them is provided by local authorities? Of course, we have serious concerns about children who cannot be traced and who end up being exploited by those who use them for trafficking.

This SI provision applies in England and Wales only. The Minister mentioned discussions with the Scottish authorities on this provision. Have the Government consulted the Scottish authorities about how they deal with such issues? Finally, can we be assured that such checks are carried out on refugees in hotels and detention centres at present?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument, and of course we support it. The noble Lord, Lord Dholakia, very effectively set out the background to this. I will just set the scene and then ask a few questions of the Minister. First, I personally know a number of friends and colleagues who have welcomed Ukrainians into their homes. I am sure others in the Room have the same experience and, from what I have been told, it has been a positive experience for all concerned. However, there have been problems and we need to be realistic about them.

Offender Rehabilitation Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Lord Dholakia

Tuesday 11th June 2013 Lords Chamber

[Lord Dholakia]

I am delighted to support this amendment, which sets out a new clause before Clause 12 and deals with the presumption in favour of community sentence orders, as has been rightly pointed out. This is very much a probing amendment to see how the Minister will react. I will be brief. My noble friend Lord McNally, the Minister, is aware that every time we have discussed legislation on sentencing, particularly lower-level sentencing, I have advocated a cautious approach in favour of community sentence orders in place of custody.

Prison sentences of less than 12 months are the argument that we are putting forward. We all know that under the present provisions, custodial sentences of less than 12 months achieve very little corrective behaviour. On the contrary, we have seen that the impact on an individual without supervision can be very damaging indeed. We want to avoid this risk. Our amendment would help guard against the risk that the welcome provisions of the Bill for post-release supervision for short-term prisoners could lead to the courts imprisoning more people. At present, courts may decide in borderline cases not to imprison an offender because supervision in the form of a community sentence is more likely to divert him or her away from offending. However, with the new supervision arrangements, the court might feel that by imprisoning the offender for a short period it can get the best of both worlds—both the punitive impact of imprisonment and supervision of the offender when he or she is released.

We have discussed similar provisions in previous legislation. The custody plus provision that we introduced at one stage is history now, but we know what happened to it. This would be a short-sighted view as even a short period of custody can lead to an offender losing accommodation and a job and fracturing family links, all of which make it more likely that he or she will reoffend, which is contrary to the provisions that we will discuss in our debate on rehabilitating offenders. Sentences of less than 12 months are too short for a sustained attempt at rehabilitation in custody but are long enough to damage the community ties which those supervising offenders can build on in trying to prevent them reoffending.

There has been a dramatic increase in the number of options available to the courts when dealing with offenders. We know about simple things, such as matters of conditional discharge and fines. There are also community service orders, probation orders and attendance orders. These are just a few of the alternatives, yet prison remains at the heart of our criminal justice system, with other penalties often referred to as alternatives to custody. I believe that my noble friend Lord McNally is on the right track in the way in which this Bill deals with rehabilitation. He is right in putting the emphasis on society to try and deal with more offenders in the community rather than in prisons. That is not in doubt. We are now seeing the impact, which is less use of prison and a drop in the crime rate—a remarkable achievement by the coalition Government. No longer does the argument apply that prison works.

We are not suggesting that grave offences should in general attract other than long sentences, but past experience has led us to believe in two important principles of sentencing. This is not original, radical or revolutionary. In essence, it fits in with many Court of Appeal judgments over the years. First, the court should send to prison only those whose offending behaviour makes any other course unacceptable. Secondly, those who are sent to prison should stay there no longer than is strictly necessary. The amendment is designed to meet the Government’s objective on matters of rehabilitation. We should do this by avoiding the unintended increase in prison sentences. This would be an important discipline that would help against that unintended consequence. This probing amendment would make it possible for my noble friend the Minister to discuss the merit of our proposal with the Sentencing Council and to examine the possibility of setting up some indicators so that the process is adequately monitored.

[Lord Ponsonby of Shulbrede]

My Lords, I support the amendment moved by the noble Lord, Lord Marks. As he said, the current position is that an offence has to be so serious that a custodial sentence is imposed, but his amendment would put in place a presumption in favour of a community sentence. The additional part of his amendment is that special reasons have to be given in open court. My question to the noble Lord, Lord Marks, if it is appropriate to ask him, is: what might those reasons be? Would a breach of previous community orders be a special reason for it to be announced in open court that a custodial sentence will be passed? While I am sympathetic to the objectives of the amendment, I am open-minded about how it will be applied in court.

The Government’s impact statement highlighted the potential risk of increasing custodial sentences of less than 12 months because the sentencers themselves know that there will be a licence followed by a supervision period, which might be attractive to them. The noble Lord, Lord Marks, referred to the noble and learned Lord, Lord Woolf, making that same point in an earlier debate. My experience is that magistrates and district judges are always reluctant to commit an offender to prison and understand very well the current wording of the guidelines that an offence has to be so serious that only custody will do.

Nevertheless, it is an interesting amendment, which, as I said, I support. It will be for the practicalities of the Government to see whether there is a change in sentencing behaviour if the Bill goes through unamended. I am doubtful whether sentencers will change their behaviour; there will not be more custodial sentences because of the additional supervision period. Can the noble Lord, Lord Marks, give an example of the special reasons, to which he alluded, that might be appropriate for a custodial sentence?