Criminal Justice and Courts Bill Debate
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Lord Beecham
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(9 years, 9 months ago)
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Lord Beecham
“(10) Before this section comes into force, the Secretary of State shall—
(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and(b) lay a report before Parliament containing—(i) his assessment of the resources required for additional hearings; and(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”
Lord Beecham (Lab)
My Lords, Amendments 4, 5, 8 and 16 relate to the obligations imposed on the Parole Board by Clauses 3, 4, 5 and 7. Clause 3 adds terrorism and explosive offences to the category of the enhanced dangerous offenders sentencing scheme. Cases will be referred to the board for a decision about release instead of offenders being eligible for automatic release after serving two-thirds of their term. Clause 4 extends this to all such offenders serving extended determinate sentences. Clause 5 applies a similar provision to other offenders convicted of serious crimes, as listed in the schedule, who will be subject to discretionary rather than automatic release between the halfway and end points of their sentence. Clause 7 creates a new release test for recalled prisoners to be applied by the board under which the Secretary of State or the board has to be satisfied that it is highly unlikely that a prisoner would breach a condition of his licence.
All these measures are likely to increase the pressure on an overstretched and underresourced Parole Board. The Government estimate an increase of 1,100 hearings a year by 2030, rising by an estimated 50 next year, 400 by 2020 and ultimately requiring an extra 1,000 prison places. As the Prison Reform Trust points out, the Ministry of Justice has form in these matters. When indeterminate sentences—IPPs—which we will be debating later were introduced, the ministry, under a previous Administration, estimated an increase in the prison population of 900, but by the end of last year 5,335 people were serving IPP sentences, two-thirds of them beyond their tariff date.
This was in good measure a result of the failure, frequently commented upon in this House and beyond, to provide the necessary resources to the Parole Board to prepare people for release and rehabilitation. As the Prison Reform Trust reported, offending behaviour programmes are scarcely available and limited in their scope and effectiveness, and it is inherently difficult to demonstrate reduced dangerousness and pass the high safety threshold for release. That was in 2010, when numbers were smaller and staffing greater. Moreover, as the Prison Reform Trust points out, the Government’s impact assessment of the provisions of the Offender Rehabilitation Act estimated that 13,000 offenders would be recalled or committed to custody a year, leading to an extra 600 prison places being needed. Have the Government looked into the real impact of the Offender Rehabilitation Act on this situation to date and as anticipated in the near future? Further, what assessment have they made of the effect of the recent Supreme Court judgment in the Osborn case requiring the board to hold more oral hearings, which last December alone had increased by one-third in indeterminate review cases to just under 400 in a month and to 90 in indeterminate recall cases?
The board warned in its annual report, as it appears from today’s Daily Telegraph, that the number of oral hearings could increase from 4,500 a year to as many as 14,000, and at an additional cost of £10 million. What is the Government’s response to this estimate? The Minister has apparently indicated that an extra £3 million will be allocated to the Parole Board. How does that square with the board’s own estimate of the potential cost? What is the Government’s estimate of the impact on prison numbers and on the work of the board of the Secretary of State’s latest headline-grabbing decision that no prisoner may be transferred to an open prison if he or she has previously absconded, which is apparently already building up a backlog of Parole Board hearings? How do the Government expect the board to cope with these pressures when it has already lost 20% of its staff and when its members are now having to use an unreliable video link system to conduct hearings—another example of the problems associated with rushing headlong into the all too frequently costly and inadequately tested application of IT and electronic systems?
All this is set against a background of massive overcrowding in many prisons with the attendant problems that that poses for prisoners and staff, and with the system too often being pared back to one of simple confinement. The chief inspector has spoken of dangerous instability in the prison estate and has pointed out that despite some recent high-profile cases, there is a very low failure rate for release on licence. Further questions arise over the Government’s apparent intention, as reported in the Times on 21 June, to transfer responsibility for the administration of recall cases to the magistrates’ courts. Can the Minister tell us whether this is the Government’s policy, because of course the report may be wrong, and if so, what consultations have taken place with the Parole Board, the Magistrates’ Association, the judiciary and other interested parties? Is there an intention to pilot such a concept before rolling it out?
It really is time for the Government to adopt less of the kind of muscle-flexing populism that is so often exhibited by the Secretary of State and more of the considered approach we have come to expect of the Minister. These amendments are designed to ensure that the Parole Board is fully engaged with any plans to implement these measures and that Parliament has an opportunity to scrutinise and approve their implementation on the basis that the necessary resources will be made available to ensure that the pathway to rehabilitation is properly and securely paved. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to add to some of the comments made by my noble friend Lord Beecham on the make-up of the review of the Parole Board. My understanding is that at present Parole Board members can either sit as a single Parole Board member or as two or as three. They can be a mixture of lay people and lawyers. It is of course desirable that the more serious the case, the greater the legal training and the more appropriate the experience of the people sitting on those hearings. I also wonder whether the Minister can comment on the possibility of using lay magistrates to sit on parole hearings. Is this something that the Ministry of Justice is willing to consider? We have a resource in the pool of magistrates throughout England and Wales, so is the ministry considering the use of magistrates in parole hearings? The whole subject of the Parole Board is extremely important, as we have heard from my noble friend Lord Beecham, and is something that needs to be managed very carefully, given the reduction in the resources being made available to it.
Lord Beecham
My Lords, I thank the Minister for his explanations. I do not, I am afraid, find them entirely satisfactory, particularly in relation to the increased workload and its cost. It is, after all, the board’s annual report that suggested that there would be an increase of nearly threefold in the number of hearings—from 4,500 to 14,000—at what it estimated would be an additional cost of £10 million, which, on the Minister’s figures for the current costs, represents a doubling of the cost. Yet the Government’s planned contribution is of the order of £3 million, which is significantly less than was indicated by the board’s figures. There is still an issue here, and that is what lies behind the suggestion that we in Parliament need to take an overall look at the situation as it develops in terms of the adequacy of resources.
The objectives are admirable, but it does not seem to me and, I suspect, some other noble Lords that the Government have fully thought through and costed what is required to deliver the policy—hence the suggestion that the Parole Board be consulted. Consultations are, no doubt, taking place but the results of those consultations, and the implications for staffing and otherwise, should be laid in a report before Parliament in order that it can exercise its job of scrutinising a significant area of public policy that potentially impacts upon public safety. All of us wish the service to work well but it has to be properly resourced, and it is necessary for Parliament to have a role in doing that, given that, on the face of it and for all the Government’s good intentions, they do not seem to have worked it through sufficiently.
At this stage, I will not press the amendment but it is a matter to which we may well return on Report. I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I must confess that I am somewhat puzzled by the position outlined in the JCHR report and what the noble Lord, Lord Lester, referred to as the Government’s recent pronouncements on it. As he rightly said, the report indicated that the Government would be awaiting the outcome of the appeal in McLoughlin before updating the Committee of Ministers of the actions that they plan to take to implement the Vinter judgment—which implies that the Government are planning to implement the Vinter judgment, but in ways as yet undetermined.
I am sure that the Minister will be able to enlighten us about whether that is in fact the Government’s intention and, if so, what approach they will be taking. If they are awaiting the outcome of that appeal before coming to a conclusion, that is not an unreasonable position for them to take, but the underlying question is whether they intend to implement the Vinter judgment as indicated in whatever decision the Supreme Court ultimately makes on the details of the McLoughlin appeal.
I am also uncertain about the interesting reference that the noble and learned Lord, Lord Phillips, made to a wider meaning of “compassion” and whether that would be a criterion for release. Is that something that the Government are in fact contemplating? Might that form part of their response to the Committee of Ministers in relation to Vinter?
These are difficult cases, and one must hope that we can reach the position where we are not in conflict with the court but that, nevertheless, the balancing interest of public safety is also given due weight. For the Opposition’s part, we await the Government’s response in general and the Minister’s response in particular this afternoon.
Lord Faulks
My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.
However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.
I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.
The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.
The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:
“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.
The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:
“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.
The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.
The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.
The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.
The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)
My Lords, if Amendment 9 is agreed to, I cannot call Amendments 10 to 12 inclusive by reason of pre-emption.
Lord Beecham
My Lords, tagging—or electronic monitoring, to give it its official title—is potentially a useful tool in cases where it is necessary to protect the public by, for example, prohibiting contact with named individuals, imposing a curfew or restricting access to particular places. Even so, we are all conscious of the appalling experience with the Government’s favoured all-purpose contractors, G4S and Serco, which resulted in the repayment by those companies in the end of £214 million, roughly equivalent to the total of a year’s savings engendered by cuts to legal aid. Clause 7 takes us, as we have heard from the noble Lord, Lord Marks, into new territory with the extension of the use of this system to prisoners on licence, and that on a mandatory basis. The Chief Inspector of Prisons has been highly critical of this proposal, since in the absence of evidence of absconding or committing offences while on licence this is not, in fact, a significant problem. What is the evidence on which this proposal is based and what is the cost of the equipment and the necessary monitoring? The impact assessment states:
“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage … As such, we are unable to calculate impact”.
That is an extraordinary basis on which to import into this legislation a mandatory requirement. It seems, as an approach to legislation, to be matched only by the Home Office’s approach to record keeping.
Dan Jarvis MP, my honourable friend in the Commons, has identified some significant risks. They include the possibility that the technology might not be capable of delivering the service at an economic cost. The use of tagging might not have the anticipated deterrent effect. The new licence conditions might lead to an increase in breaches, such as not wearing the tag, which could lead to more prison places being required. On the latter point, the impact assessment rather weakly admits that the number of additional prison places required, “cannot be accurately estimated”. If ever the Government’s own impact assessment has made the case for properly piloting a provision, this is clearly such a case. Moreover, there is widespread concern about making this a mandatory condition, something that is at odds with the whole purpose of release on licence, which is to help offenders reintegrate into society. One has to ask whether making it mandatory is a provision dictated by the potential contractors’ need for an assured case load and associated financial returns rather than any substantive merits of the procedure.
There is also the unacceptable position that the Secretary of State may impose a code of practice especially about the data acquired through the process without parliamentary approval. The Joint Committee on Human Rights regards safeguards in relation to the collection and storage of such data as crucial. Where are we in relation to the drafting of a code? Amendment 12 deals with this issue.
Amendment 13 calls for an early review of any scheme in order to assess its actual impact on individuals, on reoffending, and on cost. Amendment 11, which we seek to repeat in Amendment 44 applying to secure colleges, would make the contractors subject to freedom of information procedures. Last year, the Information Commissioner asked the Justice Committee, in this respect, if more and more services are delivered by alternative providers which are not public authorities, how do we get accountability? This is particularly relevant in the context of the justice and penal systems, where there have been too many worrying failures and instances of quite disgraceful treatment of prisoners and detainees by such contractors. If, as is quite right, state prisons are subject to the Freedom of Information Act, what possible reason could there be for excluding other providers, including those who are to provide the tagging mechanisms here?
I hope that the Minister can deal with some of these questions, as well as the points of substance raised by the noble Lord, Lord Marks. It is absolutely impermissible for these powers simply to be imposed by order, and on the basis of such flimsy evidence as the Minister produced, to support the extension in the way that the Bill prescribes.
Baroness Kennedy of The Shaws (Lab)
My Lords, I know that it is normal that the Front Bench on this side finishes any debate before the Minister answers, but I really have a bad feeling about the clause and I want to support the amendment. The provision smacks to me of the outcome of lobbying by those who will have highly remunerative contracts, if it comes to pass. We are not hearing any costings on this, and I would very much like the Minister to tell us what it is going to cost the public purse. As others have said, there are circumstances in which it is very useful to tag someone when there are concerns about whether they might not respond to the ordinary inhibitions on their liberty during a period of parole, but I am concerned about it being used in this wide way. Behind the provision is the lobbying by those private sector companies that now make a great deal of money out of this very kind of thing. Have any costings been done? How much will it cost the public purse?
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 Beecham
“(1A) The code of practice must include a requirement that a person carrying out electronic monitoring who is not a public authority as defined by section 3 of the Freedom of Information Act 2000 shall provide information in respect of the carrying out of electronic monitoring in the same manner as if they were such a public authority.”
Lord Beecham
My Lords, the amendment addresses the growing trend of government to outsource the provision of public services to private contractors. Something like £95 billion a year is now tried up in such contracts. They cover a whole range of services, but the Ministry of Justice has been at the forefront of this development in public policy. One thinks of the controversial issue of probation, which we have debated at length, notwithstanding the Government’s initial decision not to include it in legislation. We also have the experience of a number of private prisons—certainly under the previous Government as well, but now clearly to be promoted even further. We have for some time now seen court staff provided to magistrates’ courts and elsewhere by private contractors. We have had the shambles of the interpreter service, again in the hands of contractors. In the Bill we have, as we have already heard this afternoon, provisions about tagging. We will come in due course to the controversial provisions about secure colleges.
Public providers still operating in some of these areas, such as in the case of prisons, have to comply with the provisions of the Freedom of Information Act, but the private contractors do not. That strikes many as a complete anomaly. Why should a private prison such as the Acklington prison in the north-east of England, where I come from, which has experienced great difficulty since privatisation, not be subject to FoI requests when one of Her Majesty’s prisons, perfectly properly, is? Why should those who look after certain detention centres for asylum seekers be immune from FoI requests, particularly given the constant flow of unfortunate stories that we hear from such places, while a public institution is, perfectly properly, accountable? I have already quoted the Information Commissioner’s comments in addressing the Justice Committee last year, but I will repeat them. He asked,
“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?”.
Even the Prime Minister is on record as being in favour of transparency. A couple of years ago, he spoke about the power of transparency and why we need more of it. He also spoke of leading the most transparent Government ever. Transparency, of course, has a number of meanings and one can accept that, in a certain respect, his Government is exceedingly transparent—but it is not particularly transparent when it comes to the letting of contracts, particularly to these third-party organisations.
My honourable friend Dan Jarvis said in a debate in Committee on the Bill:
“The rewards that third parties stand to gain need to go hand in hand with the duties of transparency and information sharing. The public should be able to ask … how, and how well, the service they are paying for is being run”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 187.]
The Labour Party has pledged to extend the FoI legislation to contractors of public services. Why will the Government not at least match Labour’s pledge to do likewise and extend the freedom of information provisions to these companies, which are carrying out important and, in many cases, extremely sensitive areas of public provision? It would appear that those companies are essentially immune to the same processes that would apply if they had remained in public hands. Particularly given the great concern about the developments in the probation service, it is not time that the Government acknowledged that there is force in this argument and, accordingly, accepted the amendment? I beg to move.
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.
Lord Beecham
“(4B) In considering whether the person is highly likely to breach a condition included in the person’s licence, the conditions shall be reviewed and amended as appropriate to ensure that the person is able to comply.”
Lord Beecham
My Lords, I shall speak also to the Question whether Clause 8 stand part of the Bill.
This amendment refers to the provisions in Clauses 7 and 8 dealing with the test for release after recall in the case of determinate sentences. The amendment requires the Secretary of State and the Parole Board to consider, in addition to other factors currently applicable in determining whether a recall prisoner is suitable for automatic release or rerelease when subject to discretionary release, whether the offender is “highly likely” to breach his licence condition. That is the thrust of the Bill as it stands.
At present, the principal consideration is whether release would involve a risk of serious harm to the public. Clause 8 empowers the Secretary of State to change the test by means of an order subject to affirmative resolution. Left as it stands, the “highly likely” test looks to be subjective, and that impression is enhanced by the failure to consider and provide for factors which might contribute to the outcome of a decision to release.
Similar issues arise in relation to the new offence of remaining at large after recall in Clause 10, to which we will come later. As in that case, what is missing is an assurance that the necessary support will be given to vulnerable offenders, especially those with, for example, mental health problems or learning disabilities which seriously impair their capacity to understand even common terms such as “victim” or “breach”, as affirmed in the helpful briefing provided by the Prison Reform Trust. A substantial proportion of prisoners suffer from conditions that affect their capacity precisely to understand the conditions that might be laid upon them or otherwise to conduct what for ordinary citizens would be a simple lifestyle.
The Prison Reform Trust points out that conditions in relation to release and supervision need to be appropriate to the intellectual ability and understanding of the offender in order to comply with the obligations of the Equality Act 2010. It is unclear whether the Government have considered the applicability of the Equality Act to this provision and whether they consider that the provision passes the test.
Amendment 15 would therefore require the conditions in a person’s licence to be reviewed and amended from time to time to ensure that the person is able to comply—that is, that he has the faculties to allow him to comply—and that will usually involve the provision of relevant support for the prisoner in preparing for release and during the period of release. Amendment 16, which we covered earlier, would require the Secretary of State to,
“consult with the Parole Board about the resources”,
and report to Parliament on them, required to deliver that degree of support.
Clause 8 is an unsatisfactory provision inasmuch as it empowers a change in the test by secondary rather than primary legislation, as I pointed out at Second Reading. The noble Baroness, Lady Linklater, who is not her place, put the case even more strongly. She said that the clause gave the Secretary of State,
“an unacceptable degree of power”.—[Official Report, 30/6/14; col. 1593.]
She said that, for that reason, she hoped the House would join her in a stand part debate in relation to Clause 8, thereby restoring the current position, which is that change should be effected by primary legislation. It is regrettably a notable feature of this Bill that, as Justice points out, it creates no less than 30 new delegated powers, of which only eight require approval by affirmative resolution.
That is particularly objectionable in a case where individual liberty is at stake. Albeit that it is conditional liberty because it is release on licence, such is the case with the provisions that we are now debating. I hope very much that the Government will reconsider this. Perhaps, the Minister could indicate what the Government take to amount to the conditions of a test of high likelihood that the Bill expresses as a condition.
There are therefore two grounds for my amendments. The first is the requirement to ensure that the individual can cope with the conditions, and be prepared for them and supported in them. The second is to do with the parliamentary process to ensure that there is proper parliamentary scrutiny by way of primary legislation before changing a test which will interfere with the liberty of the subject. I beg to move.
Lord Beecham
I thank the Minister for his helpful reply and will look carefully at the record to see whether it is necessary to bring matters back on Report. However, I emphasise that the Opposition as a whole—and, I suspect, other members of the Committee—are reluctant to confer on the Government order-making powers of a kind that would interfere with the liberty of a subject without primary legislation to establish them. However, that is a matter that we may consider at a later stage. In the circumstances, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.
The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.
Lord Beecham
My Lords, it is ironic that the Committee meets today, on Bastille Day, as the French Revolution effectively broke out with the release of a number of prisoners on what were presumably indeterminate sentences. I suppose that they might have been lettres de cachet. The House and the Committee are indebted to the noble and learned Lord, Lord Lloyd, who has constantly raised this matter.
The noble and learned Lord, Lord Phillips, referred to “Fidelio”. I am not sure whether the Secretary of State would find himself comfortable in the position of the Minister in that opera; perhaps he would be more comfortable in another opera as Gilbert and Sullivan’s Lord High Executioner. Be that as it may, the noble and learned Lord raised a series of questions, implicitly or explicitly, to which we have had no reply thus far. I hope that the Minister will be able to give us some indication of the Government’s thinking, if they have got that far, on the issues raised this afternoon.
The first question has already been asked but I will repeat it: why include a provision in legislation and then completely ignore it? Have the Government or, more particularly, the Secretary of State considered using the provision that this Government included in the LASPO Act? If they have, on what basis has that consideration taken place? Has the Secretary of State looked at any cases of the kind to which the noble and learned Lord referred—I would hardly expect him to look at them all—to come to a view about whether it would be right to exercise the discretion that was deliberately placed in his hands? If he has not, why not? What is the Government’s intention in relation to this section of LASPO? Is it to be ignored or is it at all to be used? If it is not to be used, why do the Government not have the courage of their apparent convictions and delete it? If it is to be used, when and under what circumstances will that be?
Questions have repeatedly been asked today about the resources available to the Parole Board to deal with matters of this kind. I asked the general question before to which others, including the noble Lord, Lord Wigley, have now alluded about the increased burden on the Parole Board as a result of recent decisions and the growing number of cases that it will be asked to look at in oral hearings. However, has any specific consideration been given to the resources required to deal with the cases of people who have been in prison for the length of time to which noble Lords have referred? Again, if not, why not?
There may be a concern in respect of some of these defendants as to what would happen if they were released and whether they might to some degree be a risk to the public. What investigations have been carried out to assess the need for investigation and inquiry by the Parole Board in support of those potential candidates for release who have served such a length of time? The overriding question is really therefore: what was the purpose of incorporating the Secretary of State’s discretion in the 2012 Act if it is to be treated as redundant? If it is not to be so treated and there is an intention to do it at some time, why the delay? As we have heard, many cases have been running for an unacceptable length of time. I hope that the Minister will be able to give some assurances that this matter will be seriously addressed and not simply left on the shelf in a way that does no credit to our system.
I think that the previous Government were rightly criticised on matters of this sort, in many respects, particularly in also failing to provide sufficient support for the Parole Board. However, their failure is relatively minimal compared to the looming failure which is likely to affect not only this category of prisoner but others who require the Parole Board’s intervention. I hope that the Minister can indicate, today of all days, that some movement will be made and that the Secretary of State will address himself to the plight of these people, and thereby avoid a further stain on the reputation of the Government in this respect.
Lord Faulks
My Lords, we are debating once again the position of current IPP prisoners. The Government abolished that sentence in the LASPO Act 2012, for reasons I need not rehearse. We replaced them with immediate effect so that no further IPPs can now be imposed on offenders convicted after December 2012, regardless of the date of offending. That, as I think noble Lords would agree, is a major step forward. The noble Lord, Lord Beecham, said in the course of his address to your Lordships that the Government who preceded ours had not given the Parole Board sufficient resources. What he failed to do was to acknowledge that it was his Government who brought in this scheme, which has been so much criticised. That scheme has resulted in a number of people being imprisoned and still being in prison; this Government repealed that provision.
However, in respect of IPP sentences already imposed, our position remains that it would not be right or appropriate retrospectively to alter sentences that had been lawfully imposed prior to the abolition of IPPs, particularly because in this case those sentences were imposed with public protection issues in mind. Consequently, prisoners serving IPP sentences are not released unless the Parole Board authorises it.
A number of questions were posed about the Parole Board’s resources, including those from the noble Lord, Lord Wigley. In answer to an earlier amendment, when I think the noble Lord was not in his place, I set out to the Committee the fact that the Government were well aware of the demands, temporary and in future, being presented to them. They had given further resources and were intending to be nimble in responding to the demands that were and would be placed upon them.
Lord Beecham
I am sorry to intervene at this point but, as the noble Lord, Lord Wigley, was not in the Chamber when this matter was discussed before, would the Minister care to address the point that I made to him that the Parole Board’s estimate of the increased demand was £10 million a year, which is equivalent to the total budget, while the Government’s provision is proposed to be £3 million? How does that square with the assurance that he is trying to give to the noble Lord?
Lord Faulks
The Government and the Parole Board, as the noble Lord would expect, are in frequent communication. It is difficult to be precise about these figures; an estimate is simply that. I assure the noble Lord that the figures in so far as they can be reached are the result of a number of conversations that have taken place regarding predictions about the demand. It is the Government’s position that we are providing the appropriate support for the Parole Board now and its estimate of what will be required in future. I also said—
Lord Beecham
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.
Lord Patel of Bradford
I completely agree with the noble Lord, Lord Mancroft, about the issue of prescription drugs out in the community, given the ludicrous figure of literally 50 million prescriptions—I think—having been issued last year. However, there is a clear distinction between that situation and the situation in prisons. Mandatory drug testing was introduced to test prisoners for heroin in particular. However, following the introduction of mandatory drug testing, many prisoners who had been using cannabis, which stayed in the system for longer, started to use heroin, which stayed in the system for a shorter time. We got over that problem through introducing into the prison estate a very good integrated drug system, which has worked exceptionally well.
However, the drug abuse problem has shifted to prescription drugs. In prison after prison, prescription drugs are used as a commodity. People are being bullied on account of these drugs and violence is associated with them. We do not have the measure of this problem or know the extent of prescription drug abuse. Indeed, we have no idea about the problem of the so-called legal highs, which is clearly a problem in prisons, because the mandatory drug testing simply does not pick up those drugs. Merely to say that we will conduct mandatory drug testing for all drugs will not solve the problem. We need to analyse further how prisoners can safely take the prescription medicines they are prescribed and what policies need to be put in place to provide safe places for them to do so. We need data on prisoners’ prescription medicines and on the incidence of abuse to enable us to move forward on this issue. The intention behind the amendment is to obtain that data and for the Secretary of State to present them to Parliament in a report. That would give us the opportunity to improve the situation.
Lord Beecham
I should like to add a further thought and thank my noble friend for putting the case for these amendments so capably. The responsibility for providing medical services in prisons belongs ultimately to NHS England as the commissioners. Therefore, it is not a matter solely for the Ministry of Justice. It seems to me that some interdepartmental discussions on this issue would be timely, if they have not already taken place. There is the sheer cost, of course, of providing prescription drugs for prisoners as, indeed, for anyone else, which, obviously, will be a factor in the mind of NHS England. As regards the general health problems of prisoners, particularly mental health problems, it seems to me that the involvement of the Department of Health and NHS England in looking at the aspects to which our amendments refer would be very helpful. I am not asking for any response on that tonight except perhaps for a nod in the direction that some discussions will be held with NHS England and the department to see whether a more holistic approach can be adopted across the relevant agencies. It would be helpful if such an indication could be given.