Criminal Justice and Courts Bill

Lord Ahmad of Wimbledon Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede]

My Lords, I want to pick up on the point that my noble friend Lady Kennedy of The Shaws has made and speak to Amendment 13, on the review of this extension of tagging. My honourable friend Dan Jarvis made the point in the other place about possible unforeseen consequences of this extension. I was talking to a magistrate colleague of mine only last week, and she pointed out to me that the new GPS tags are physically much larger than the existing tags used today. That means that they are possibly easier to remove—but there is another possible consequence, in that they need charging much more often. The existing tags do not need recharging because the battery lasts for the length of the period that the person is tagged. Potentially, that raises a whole series of issues with offenders—people out on bail or offenders in the case that we are now discussing—who are not properly recharging their GPS-driven tags. My understanding is that they would have to do it by an induction loop; it would not be a physical connection. That could raise a lot of unforeseen consequences, which is why I reiterate my support for Amendment 13, so that it can be looked at when the provision comes into force.

[Lord Ahmad of Wimbledon (Con)]

My Lords, the effect of Amendments 9, 10 and 14 would be, as my noble friend Lord Marks said, to remove from the Bill the provisions which would allow for compulsory electronic monitoring conditions to be imposed on offenders on release from custody. This would leave the use of these conditions on a discretionary basis, as they are now under the Criminal Justice and Court Services Act 2000. I understand that there are some concerns about how these powers will be used. Therefore, it may be helpful if I take some time to explain how the provisions would work and why the Government consider them necessary and important in our drive to deliver a more effective sentencing and rehabilitation framework.

I emphasise that legislation has been in place for some years to provide for the use of electronic monitoring as a condition of release, both to monitor compliance with other conditions, such as curfew or exclusion conditions, and to monitor the offender’s whereabouts as a condition in its own right. The limitations of the current technology have meant that, in practice, electronic monitoring has been used so far simply to monitor compliance with a curfew. However, we are reviewing the electronic monitoring contracts, which provides us with the opportunity to take advantage of new, cutting-edge technology that will enable us to track offenders in the community.

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[Baroness Kennedy of The Shaws]

Before the Minister sits down, perhaps I may ask a question. Was there lobbying by security companies to have this change in law introduced so that it would be compulsory for all prisoners on licence to have tags placed on them? Was there lobbying to create this change in law?

[Lord Ahmad of Wimbledon]

The noble Baroness asks a pertinent question. Representations are always made in any part of government, but the Government are, as I hope I have indicated, taking these steps forward in line with the concerns that exist and based on the evidence that I have presented to the Committee today.

[Lord Beecham]

With respect to the Minister, he may not be able to answer the question that my noble friend has asked without advice from the Box or elsewhere; but he has not even purported to answer the question. The question is a legitimate one. Perhaps he would undertake to reply to my noble friend and let her and the Committee know whether those who are likely to benefit from these contracts lobbied for this provision to be mandatory.

[Lord Ahmad of Wimbledon]

Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.

[Lord Marks of Henley-on-Thames]

My Lords, a great deal of what my noble friend has said in response to these amendments is entirely uncontentious. As I hope I have made clear, I have no objection to discretionary electronic monitoring of prisoners on licence, and no objection to improved tracking, technical improvements or effectiveness. I quite understand everything he said in that score.

My concern was with the element of compulsion added by new subsection (3). I regret that I simply did not understand my noble friend’s response on its drafting. He said that there was somehow a discretion in the order-making power under new subsection (3) that would enable the Secretary of State to take into account cases where it would be difficult, inappropriate or not sensible to impose electronic monitoring. It may be that we are talking about a matter of drafting. In that case, I urge my noble friends to look at the drafting.

New Section 62A provides:

“The Secretary of State may by order provide that the power under section 62 to impose an electronic monitoring condition must be exercised”.

The description of the order-making power states:

“An order under this section”—

which is an order that the monitoring condition power “must be exercised”—

“may … require an electronic monitoring condition to be included for so long as the person’s release is required to be, or may be, subject to conditions or for a shorter period”,

and may,

“make provision generally or in relation to a case described in the order”.

It may be that my noble friend is referring to the entitlement to make provision generally as imposing a discretion. If he is saying that, I would suggest that that no longer complies with the description under new subsection (1) of an order imposing “an electronic monitoring condition” which “must be exercised”. Furthermore, even if he were right that that would somehow allow electronic monitoring conditions not to be mandatory, I would respectfully suggest to him that that is a clunky way of providing for particular cases to be dealt with in accordance with the discretion, which is what I suggest ought to be maintained. However, on the basis that my noble friend will consider the drafting, I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, Amendment 11 seeks to impose a requirement on providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act 2000. It does this by introducing a requirement as to the contents of the code of practice that the Secretary of State will issue under new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. The amendment would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.

I assure the Committee that the Government recognise that there are concerns about the position of private providers of public services under the Freedom of Information Act. As noble Lords may know, the issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act, carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed,

“that contracts provide a more practical basis for applying … outsourced services than partial designation of commercial companies under section 5 of the Act”.

The committee also felt that,

“the use of contractual terms to protect the right to access information is currently working relatively well”.

The Government accepted the committee’s recommendation and later this year will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. The new code will promote and encourage the use and enforcement of contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will also encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.

The Government and the Information Commissioner, referred to by the noble Lord, Lord Beecham, will monitor the effectiveness of the new code. If it does not prove successful, the Government have said they will look at going further, including potentially extending FoI formally to contractors—again, a point made by the noble Lord, Lord Beecham. We believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of these steps, I would argue that the measures proposed through these amendments are unnecessary. Based on the explanation and assurance I have given, I hope the noble Lord will be minded to withdraw his amendment.

[Lord Beecham]

My Lords, I will not press the amendment at this stage, but it is not clear to me why there should be two separate systems, one for private contractors and one for public agencies. The opportunity to raise an FoI request is open to anybody and should apply equally to the two different types of provider.

The Minister and his ministerial colleague in the House of Commons referred to the production of a code of practice. Once again, we are being asked to legislate in a vacuum because we have not seen the code of practice. Nor is it clear whether that code of practice will be subject to parliamentary approval. Perhaps the Minister can indicate whether that would be the case.

However, even if it were subject to parliamentary approval, I still do not see the logic in having two separate systems for the provision of like services, depending on which provider is carrying them out. Surely that will not assist members of the public. It must be difficult for them, as it is for me, to comprehend why there should be two parallel systems when they are looking not so much at the provider as at the nature of the service and any potential problems that might arise.

If the noble Lord cannot deal with that today, perhaps he will consider writing to me—again, sending that reply to the Library—otherwise, this is a matter to which we may well have to return on Report. In the circumstances, I beg leave to withdraw the amendment.

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[Lord Ramsbotham]

My Lords, I support what the noble Lord, Lord Beecham, has said. What concerns me most about Clauses 7 and 8 is that there appears to be no relevant impact assessment of what this means, not just in terms of the numbers of people who will be recalled but in terms of the numbers of people who are sentenced to short-term imprisonment followed by 12 months’ supervision in the community. The overall impact assessment tells us that there will be no impact from the provisions following the Offender Rehabilitation Act, but the impact assessment on Clause 7 says that there is a risk that short-term prisoners in their 12 months’ supervision might impose an impact. That means, as we know, that those prisoners are particularly likely to breach. It is assessed that there could be up to 13,000 short-term prisoners breaching, which will impose a considerable strain on the Prison Service. I ask the Minister whether this impact assessment has been worked out. It seems to me to be quite improper for us to pass an amendment without knowing what the impact will be.

[Lord Ahmad of Wimbledon]

My Lords, as the noble Lord, Lord Beecham, explained, the amendment seeks to require the Secretary of State to review the offender’s licence conditions before deciding whether a recalled determinate sentence prisoner should be subject to discretionary re-release, rather than automatic re-release, on the grounds that the offender is highly likely to breach a condition of their licence if so released. I presume that the aim is to ensure that recalled offenders have not been set up to fail through the imposition of inappropriate licence conditions and then suffer the consequences.

The purpose of this clause is to target those offenders who, while not presenting as a high risk of harm, have persistently failed to comply with probation supervision and any reasonable conditions that have been placed on their licence. More often than not, they are offenders who lead chaotic lives and persistently reoffend. They are offenders who are assessed as highly likely to breach their licence conditions on their re-release after 28 days in custody, thereby resulting in almost immediate further recall.

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[Lord Beecham]

Clause 10 creates a new offence of remaining unlawfully at large after recall. When he replies, will the Minister indicate the likely incidence of this offence or at least the basis on which the Government have seen fit to create an offence? How many offenders have broken their conditions and have remained unlawfully at large? That would be a material consideration.

The amendment does not necessarily challenge the creation of the offence, but it seeks to incorporate within the definition of the offence in Clause 10(1) and thereby insert into the Crime (Sentences) Act 1997 a factor which would render a person guilty of an offence if he, while unlawfully at large fails, deliberately and without reasonable excuse, to take all necessary steps to return to prison as soon as possible. The point of the amendment is to address the significant number of offenders, to whom I have already referred in another context, who have mental health or learning disabilities which may well impair their capacity to understand and comply with requirements in relation to recall.

It is important to bear in mind the significant numbers that I have already mentioned. I shall give a little more detail of the percentages involved: 20% to 30% of offenders have learning disabilities or disabilities that interfere with their ability to cope with the criminal justice system; 23% of young offenders have learning difficulties—that is to say, IQs of below 70—and a further 36% have borderline learning difficulties. That is a clear majority of young offenders. More than half of prison staff believe that prisoners with learning disabilities or difficulties are more likely to be victimised or bullied than other prisoners. They are also more likely to have broken a prison rule by several times the number of other prisoners. This is a group of damaged people, largely as a result of learning disabilities.

We know in any event that a very high proportion of prisoners suffer from one or more learning disabilities. Some 70% of adults suffer from one or more of such disabilities, while 80% of young offenders suffer from them. With that will often go problems in communication and comprehension skills, and perhaps even memory problems. Given that, we are dealing with a group of people of whom at least quite a significant proportion will struggle anyway out in the community, whether they are on licence or have ultimately served their sentence. To create a criminal offence that does not take into account those limitations is, in my submission, to veer towards injustice. What is needed is for those factors to be taken into account before bringing these people within the ambit of an offence. This amendment seeks to do that because deliberation assumes the capacity to take a decision which most noble Lords and perhaps most of the population would be able to take without the encumbrance of conditions which might limit that capacity.

The thrust of the amendment is to provide a safeguard. I hope that the Minister will look at it sympathetically. His colleague in another place, Jeremy Wright, seemed to think that the word “deliberately” did not add anything to the question of a “reasonable excuse”, but I suggest that potentially it does. It strengthens the position of those who would find it difficult to cope with the requirements, but it would not exclude those who are capable of deciding on what is required of them and who then make a deliberate decision not to comply. I hope that, either today or by the time we reach the Report stage, the Minister will be able to indicate the number of people who are remaining at large unlawfully at any one time. That would be useful background information to inform the debate at a later stage. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, I understand totally the sentiment behind the amendment, but the offence is about making sure that, in the most serious cases where offenders have been recalled from licence and have run off to avoid serving their sentence, the courts have the necessary powers to deal with them. I assure the Committee that this is not about locking up as many people as possible or indeed prosecuting them unnecessarily. The offence will not apply to the vast majority of recalled offenders, who are returned to custody within a few days, some of whom are unaware that their licence has been revoked until they are arrested. I understand the aim of making sure that the new offence does not penalise offenders who may remain unlawfully at large through no fault of their own. Clause 10 is carefully framed so that an offender who is recalled to prison will be guilty of committing the offence only if they have been notified of the recall, either orally or in writing, or they can be treated as having been notified of the recall in light of repeated failures to keep in touch with probation as required. If they fail without reasonable excuse to take all necessary steps, they can be returned to custody.

The noble Lord, Lord Beecham, has rightly raised the issue of safeguards. Not all licence breaches lead to recall and there are a number of stages that must be passed before the offence will bite. These provide important safeguards which ensure that the vulnerable offenders whom he mentioned quite specifically are not set up to fail. He will know, as will most noble Lords, that in all circumstances the probation officer and the National Offender Management Service must consider whether the offender’s licence should be revoked and, if so, whether they should refer the offender to the Secretary of State to make the final decision. That judgment is and will rightly remain a matter for the discretion of the professionals who know the offender and the particular circumstances.

The noble Lord also asked how many offenders are currently unlawfully at large. The provision is about those who remain unlawfully at large following a recall to custody from licence. Information on licence recalls and returns to custody is published quarterly and the most recent publication was on 24 April this year. The total number of offenders recalled to prison for the period 1984 to December 2013 who had not been apprehended by 31 March 2014 was 1,050, which represents around 0.6% of the offenders who were recalled during that period. I hope that this information is helpful and I would reiterate that I understand the intent behind the amendment. I hope that the safeguards which the Government have sought to put in place in framing this clause reassure the noble Lord and I trust that he will be minded to withdraw the amendment.

[Lord Beecham]

I am grateful to the Minister for his response and I note the very small percentage of those who fail to respond. Of course, the noble Lord is not in a position to say who among them would fall into the category I have described, and it may be that that is a matter which is worth looking into. However, I presume that it would be for the Parole Board or some other body. In the circumstances, and certainly at this stage, I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Patel, for tabling these amendments. I must admit I was somewhat surprised that he was confused that the name of the noble Lord, Lord Beecham, was added to the amendments rather than his. Perhaps it would have been more palatable had he said he had been confused by my good self but, accents aside, there may be more similarities there. The noble Lord raised some very pertinent issues, as did my noble friend Lord Mancroft, in talking about drug issues more generally in society. I have often spoken about this issue at the Dispatch Box in responding to Questions. We also heard briefly about legal highs.

Amendments 19 and 20 both relate to the use of drugs in prisons, although from two different perspectives. I know that the noble Lord, Lord Patel, has laid Amendment 19 in good faith to support the well-being and security of prisoners. However, in all prisons where prisoners are being supplied medicines for the management of either long-term conditions or for the treatment of acute clinical conditions, the safe use of medicines is taken extremely seriously. The noble Lord, Lord Beecham, rightly talked about the role of the NHS. Clinical governance of this process in England and Wales is undertaken by qualified pharmacists commissioned by the National Health Service not the National Offender Management Service or Her Majesty’s Prison Service. I assure all noble Lords that dispensing complies to national guidelines and is risk assessed by pharmacists on a case-by-case basis to ensure that medicines are dispensed in a manner that is safe and appropriate to a custodial environment, including the risks of the diversion of medicines and decisions over whether appropriate medicines can be “held in possession”. These processes are subject to routine audit and assurance in line with guidelines for the management of medicines in the wider community.

Moreover, prison staff are very much aware of prisoners attempting to take medication without swallowing in order to sell or pass on that medication to other prisoners. This is sometimes done in reaction to bullying from other prisoners. Every effort is made to prevent this. The noble Lord, Lord Patel, gave several examples of good practice. I give him the assurance that I will share that with my honourable friend the Prisons Minister and perhaps we can arrange a meeting to explore how this issue can best be addressed across the board. The Government have always held the opinion that where good practice can be shared across the prison estate it should be taken on board. I hope that, given that reassurance, the noble Lord will be minded to withdraw Amendment 19.

Amendment 20 would require the Secretary of State to report to Parliament on the incidence of drugs in prison and the effectiveness of drug taking. I assure noble Lords that the Government take the issue of drugs in prison extremely seriously. Therefore, Clause 14 represents an immediate step to address the challenges facing the Prison Service with the different types of drugs that are being abused by prisoners. I totally take on board the fact that legislation alone, either drafting it or applying it, will not deal with the issue, as the noble Lord, Lord Patel, said, but it is the way forward.

In regard to the incidence of drugs in prisons and the effectiveness of drug testing of prisoners, it is assumed that the question refers to the number of positives for drug abuse found by the mandatory drug testing programme across the prison estate. The effectiveness of the MDT programme is kept under constant internal review, including the range of drugs tested, which will be extended as appropriate. The number of prisoners being tested under the MDT programme and the percentage found to be positive are already published in the NOMS management information addendum. All this information is available on the government website.

As noble Lords are aware, the Ministry of Justice is ultimately accountable to Parliament for the discharge of its responsibilities, including those on the prison estate. Bearing in mind that the information is publicly available, and that noble Lords and honourable Members in the other place can hold the Government and the Ministry of Justice to account, we do not believe that the addition of further reporting requirements is necessary. Given the assurances and the explanations I have provided and the offer of a discussion on how we can introduce best practice, I hope that the noble Lord will be minded to withdraw the amendment.

[Lord Patel of Bradford]

I thank the noble Lord for his response. I agree that he and I are slightly more similar than I am to my noble friend Lord Beecham as we both have hair.