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Mr. Howard: The courts.

Mr. Straw: The right hon. and learned Gentleman says "the courts", but under the provisions that he and I have exercised as Home Secretary and to which we are both committed, it is not the courts that finally make a risk assessment of the most heinous of criminals--namely murderers--and then determine release and licence conditions; it is whoever occupies the position of Secretary of State. As I said earlier, the courts know full well the minimum and maximum time that is likely to be served when they hand down sentence.

The availability of such a community curfew order meant that some offenders who would otherwise be considered for a custodial sentence could be dealt with by electronically monitored curfew instead. The previous Government accepted that curfew with electronic monitoring was a useful alternative to prison, not only for the last few weeks or days, but in place of the whole custodial sentence.

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Mr. Howard: Is the Home Secretary incapable of understanding the difference in principle between making such an order available as an option to the courts when they come to pass sentence before any sentence is served, which is indeed what we did, and the use of that procedure by the Home Secretary to release people from prison earlier than they would otherwise have been released? Is he incapable of recognising that distinction?

Mr. Straw: Obviously I am capable of recognising the differences in the regime, but the right hon. and learned Gentleman questions whether there is a difference in principle. I go back to the debate 10 years ago when the proposal for such a system was before the House--[Interruption.] It is no good the right hon. and learned Gentleman waving his hand because the key point, the gravamen, the burden of the argument of the right hon. Member for Maidstone and The Weald, is that such people should not be let out into the community even with an electronic tag. She thinks that they should be in prison. However, the principle that binds the home detention curfew and the system of curfew which was enacted in 1991, and implemented by the Conservatives in 1995, is, as the then Home Office Minister John Patten said, to put someone under curfew

The provision was designed to keep people out of prison not just for a few weeks of their sentences, but for the whole of their sentences. It was seen as a direct alternative to prison up to the highest end of community sentencing. Virtually every one of those people put under that curfew would otherwise have gone to prison. Its aim was explicitly to keep people out of prison.

Mr. Hogg: The right hon. Gentleman must focus on the point made by my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard). Under the home detention curfew scheme, release on tagging is an Executive discretionary decision--not one made by the judge--whereas the order to which my right hon. and learned Friend referred is a judicially imposed curfew. They are different.

Mr. Straw: In one respect, they are fundamentally the same: they are alternatives to prison. I shall go halfway towards the right hon. and learned Members for Sleaford and North Hykeham (Mr. Hogg) and for Folkestone and Hythe in a second. They and the Conservative party must recognise that, in the debates 10 years ago, there was no question but that the curfew orders were alternatives to custody. Yes, they were judicially decided, but they were alternatives not just to a few weeks of a sentence, but to any period in custody.

Miss Widdecombe: Will the right hon. Gentleman give way?

Mr. Straw: I will reply first to the right hon. and learned Member for Sleaford and North Hykeham. If the only issue separating us on the home detention curfew is whether the decision to curfew a prisoner should be made at the beginning of a sentence by the court, which would obviously be a judicial decision, or whether it should be

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made towards the end of a sentence by the Executive, which in practice would be prison governors, we could have an interesting debate.

I said that I would come to the fact that, as the House may be aware, we have established a major review of sentencing policy because it is plain that the 1991 Act is in need of reform. One arrangement that we are proposing is a better mixture of custody and community sentences, which will make it possible for the court to lay down that an element of the sentence should be spent in custody, then an element spent on electronic curfew and an element spent on licence.

Mr. Patrick McLoughlin (West Derbyshire): Will the Home Secretary give way?

Mr. Straw: No; I promised to give way to the right hon. Member for Maidstone and The Weald.

Miss Widdecombe: I am grateful to the Home Secretary for giving way yet again. It is almost disingenuous to compare letting someone out of prison with not putting him in prison in the first place. The point of tagging as an alternative to prison is exactly the same as that of a community sentence as an alternative to prison, or probation as an alternative to prison--that is, a decision has been taken by a court that prison is not yet appropriate. In the case of people who are let out of prison, a decision has been taken by the court that prison is appropriate. That is the distinction between the two. They are wholly different approaches to criminal justice, and the right hon. Gentleman should acknowledge that.

Mr. Straw: No, those are not wholly different approaches to criminal justice. The right hon. Lady simply had not spotted the huge inconsistency in her approach and is now embarrassed by it. The two approaches are the same. The record shows that an electronic curfew was introduced in the 1991 Act in respect of offenders who would otherwise have been sent to prison and whom it was not safe to put on the normal range of community sentences.

The hole in the right hon. Lady's argument--I repeat the point so that she understands it--is that if she has objections to the electronic monitoring of people coming towards the end of their custodial sentences, she must have much greater objections to those who are put on electronic curfew for the whole of their sentences when otherwise they would palpably have been sent to prison.

Mr. Bermingham: I am grateful to my right hon. Friend for giving way. Does he agree that the absurdity of the right hon. Lady's position is best demonstrated by the fact that as people come towards the end of their sentences, they are allowed home on home leave. From some prisons, they are sent out to work every day. They are allowed other forms of liberty. In other words, controlled liberty is a stage in rehabilitation, and that is all that we are discussing.

Mr. Straw: That rehabilitation is extremely important and it needs to be regulated properly. If longer-term prisoners in particular are to re-make a life and, hopefully,

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get away from crime, a gradual reintroduction to community life is essential, otherwise further reoffending will occur.

Before I leave the 1990 debates, the House, especially Opposition Members, may be interested to learn that during the debate a then very young hon. Member said that prison

That observation was made by the right hon. Gentleman who is now the Leader of the Opposition.

Mr. Clappison: Will the right hon. Gentleman give way?

Mr. Straw: I will come back to the hon. Gentleman.

It is a matter of record what approach the Conservative party officially took to the home detention curfew when that was discussed in Standing Committee. It is also a matter of record than when the Home Affairs Committee considered the issue in a good deal of detail, and spent some months taking evidence about it, it concluded unanimously that the HDC scheme

[Interruption.] The hon. Member for Surrey Heath (Mr. Hawkins) signed the report, along with the hon. Members for Woking (Mr. Malins) and for Aldershot (Mr. Howarth). The hon. Member for Surrey Heath says now from a sedentary position that they were not talking about this or that. The evidence shows clearly that the Committee discussed the home detention curfew scheme, which was in draft in the Crime and Disorder Bill. That is what the hon. Gentleman signed up to.

Mr. Nick Hawkins (Surrey Heath): There is no doubt that my hon. Friends and I would never have agreed to the report if anyone had suggested that the Home Secretary would release drug suppliers and importers, those convicted of manslaughter and those who killed through dangerous driving. The Home Secretary's argument is utterly specious.

Mr. Straw: All the detail and all the criteria of the scheme were placed before the Committee. We have used it less than was anticipated when I made my statement in November 1997. The last time I put it to the hon. Gentleman that he signed up to the report, he had a different excuse. Earlier, he said that he knew what he was signing, but that it was different from the scheme that exists today. On a previous occasion, his excuse was that he did not know to what he had signed up because he had not been a member of the Committee for the whole time that the Committee considered the matter.

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