Criminal Justice and Courts Bill

The Committee consisted of the following Members:

Chairs: Sir Roger Gale  , †Mr David Crausby 

Bray, Angie (Ealing Central and Acton) (Con) 

Buckland, Mr Robert (South Swindon) (Con) 

Champion, Sarah (Rotherham) (Lab) 

Evennett, Mr David (Lord Commissioner of Her Majesty's Treasury)  

Hilling, Julie (Bolton West) (Lab) 

Huppert, Dr Julian (Cambridge) (LD) 

Jarvis, Dan (Barnsley Central) (Lab) 

Kane, Mike (Wythenshawe and Sale East) (Lab) 

Metcalfe, Stephen (South Basildon and East Thurrock) (Con) 

Neill, Robert (Bromley and Chislehurst) (Con) 

Opperman, Guy (Hexham) (Con) 

Paisley, Ian (North Antrim) (DUP) 

Qureshi, Yasmin (Bolton South East) (Lab) 

Scott, Mr Lee (Ilford North) (Con) 

Slaughter, Mr Andy (Hammersmith) (Lab) 

Smith, Sir Robert (West Aberdeenshire and Kincardine) (LD) 

Vara, Mr Shailesh (Parliamentary Under-Secretary of State for Justice)  

Vaz, Valerie (Walsall South) (Lab) 

Wright, Jeremy (Parliamentary Under-Secretary of State for Justice)  

Georgina Holmes-Skelton, Matthew Hamlyn, Committee Clerks

† attended the Committee

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Public Bill Committee 

Tuesday 18 March 2014  


[Mr David Crausby in the Chair] 

Criminal Justice and Courts Bill

8.55 am 

The Chair:  Before we begin our line-by-line consideration of the Bill. some brief explanation may be useful for those who are relatively new to Public Bill Committees. 

The selection list for today’s sitting is available in the room. This shows how the amendments selected have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. A Member who has put their name to the lead amendment in a group is called first; other Members are then free to catch my eye to speak on the amendments in the group. A Member may speak more than once in a single debate. At the end of the debate on a group of amendments I will call the Member who moved the lead amendment again. Before they sit down they will need to indicate whether they wish to seek leave to withdraw the amendment or to seek a decision. 

If any Member wishes to press any other amendment in a group to a vote, they need to let me know. I will work on the assumption that the Government wish the Committee to reach a decision on all Government amendments. Please note that decisions on amendments do not take place in the order they are debated but in the order they appear on the amendment paper. Where this is not already indicated on the selection list, I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments. I hope that explanation is helpful. 

Clause 1 

Maximum sentence for certain offences to be life imprisonment 

The Parliamentary Under-Secretary of State for Justice (Jeremy Wright):  I beg to move amendment 1, in clause 1, page 1, leave out lines 12 to 15 and insert ‘, to imprisonment for life’. 

This amendment provides for the increase in the maximum penalty available for an offence under section 4 of the Explosive Substances Act 1883 from 14 years imprisonment to imprisonment for life to apply in Scotland as well as in England and Wales and Northern Ireland.

It is a great pleasure, Mr Crausby, to begin the line-by-line scrutiny of the Bill under your chairmanship. I hope that we can start on a less than controversial note. The amendment, which stands in the name of my fellow Under-Secretary of State for Justice, my hon. Friend the Member for North West Cambridgeshire, provides for the increase in the maximum penalty available for an offence under section 4 of the Explosive Substances Act 1883 from 14 years’ imprisonment to imprisonment for life to apply in Scotland as well as in England, Wales and Northern Ireland. The Bill currently refers only to England, Wales and Northern Ireland but the Scottish Government have now confirmed that they are content with the proposal. The increase in the maximum penalty for the offence forms part of the proposals to add certain serious terrorism offences to the enhanced dangerous

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offenders sentencing scheme under the Criminal Justice Act 2003, and in appropriate cases to increase the maximum penalty to imprisonment for life. 

Dan Jarvis (Barnsley Central) (Lab):  It is a pleasure to serve under your chairmanship again, Mr Crausby, and I look forward to doing so during our consideration of this Bill. I thank the Minister for laying out the Government’s rationale for the amendment. Before I respond to his points directly let me say a few words to place them in the context of the Bill. 

The shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan) was clear on Second Reading that there are parts of the Bill that the Opposition support, parts we feel need to be improved, and parts that we oppose outright. Where there are shortcomings, provisions in need of clarification or policy lacking supporting evidence, we will do our duty as an Opposition, but where there are sensible proposals to protect the British people and make the criminal justice system work better for the public, they will have our support. 

Subject to assurances from the Government on some important issues, we hope to be able to support much, if not all, of part 1. That includes clause 1, which increases to life imprisonment the maximum sentence for three terrorism-related offences: the making or possession of explosives under suspicious circumstances; weapons training for terrorism; and training for terrorism. The amendment would extend to Scotland the proposed increase in the sentence for making or possession of explosives under suspicious circumstances. In the Bill as drafted, the increase would apply only when the offence is committed in England, Wales and Northern Ireland. 

I have two comments on the amendment and the clause as a whole. First, ensuring that the public are properly protected from the most dangerous and violent offenders is something that we wholeheartedly support. I am sure the whole Committee appreciates the gravity and seriousness of such crimes and the importance of having appropriate sentences in place for terrorist offences. That is why the last Labour Government introduced the terrorism legislation that this Bill amends. However, the Government’s impact assessment acknowledges that no offenders were convicted for either weapons training for terrorist purposes or training for terrorism in the years ending June 2012 and June 2013. A separate answer to a parliamentary question by the Minister for Security and Immigration on 3 March confirmed that there were only seven instances of people being convicted of terrorism and weapons training in the past 10 years. In those cases, the average custodial sentence was less than five years for providing weapons training, seven years for receiving weapons training, and less than four years for attending weapons training. For making explosives, the average custodial sentence is only about two years. Again, I stress those are based on a very small number of cases. 

With that in mind, some may be puzzled as to why lengthening the maximum sentences for those particular offences has suddenly become urgent and what the Government’s evidence base is for doing so. An unkind mind may think that the clause is more concerned with attracting headlines and looking tough than responding

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to the needs of the justice system. Will the Minister provide the Committee with further detail on why there is a need to increase sentences for those offences? 

Secondly, specifically on amendment 1, many will also scratch their heads as to why a proposal to have different maximum sentences in different parts of the UK for the same offence was proposed in the first place. The Minister is amending his own Bill. Can he explain what has changed in the 41 days between today and when the Bill was first presented to Parliament? What was the Government’s initial rationale for the proposal and what representations convinced the Government to extend the same maximum sentence across the whole of the United Kingdom? 

In summary, we do not oppose the increased sentences, but we question the Government’s evidence base for doing so. We also have concerns about the overall impact that the reforms will have for sentencing and release in part 1, but I will address those in more detail when I speak to our amendments 8 to 11 later. 

Jeremy Wright:  I am grateful for what I think was the hon. Gentleman’s support for not only this amendment, but for much else in part 1, and I look forward to debating part 1 with him in that spirit. 

On the specific points made in relation to the amendment, he will appreciate that, in general terms, justice is a devolved matter in Scotland, so it is always important for us to discuss with our colleagues in Scotland how such legislation should apply across the United Kingdom. I am delighted that we have been able to reach the position set out in the amendment, because it seemed illogical that there should be a different sentencing regime for the same offence applying in Scotland compared with the rest of the United Kingdom. 

In relation to the broader points made about clause 1, the hon. Gentleman is right that there were no offenders convicted of the two offences, one under the Terrorism Act 2000 and the other under the Terrorism Act 2006, which clause 1 covers, in 2012 and 2013. There have, as he said, been convictions for those offences in preceding years. I am sure he recognises that the key point is not how many of those offences there are or even perhaps the sentencing that has been applied in previous cases, but how serious the offences could be and the scope for sentencing that we wish the judiciary to have. It is important to maintain consistency in the sentencing regime for all offences on the statute book, keep that up to date, and make sure that the judges have the powers they need to deal with potentially very serious offences indeed. For that reason, we have proposed the changes in clause 1. 

The hon. Gentleman’s other point, which I accept primarily applies not to clause 1 but to other clauses, is that there may be a significant impact on sentencing and release provisions and on the work load that that brings with it. That, of course, cannot be consistent with the argument that hardly anyone will end up receiving sentences under the clause. Either lots of people will get one, and there will be a big impact on the Parole Board and the prison system, or no one will get them, in which case there will be no such impact. However, as I said, I accept that he made that point primarily in relation to debates that are to come. 

Question put and agreed to.  

Amendment 1 agreed to.  

Clause 1, as amended, ordered to stand part of the Bill.  

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Clause 2 

Specified offences 

Question proposed, That the clause stand part of the Bill. 

Jeremy Wright:  The clause makes some necessary amendments to schedule 15 to the Criminal Justice Act 2003, which sets out the list of violent and sexual offences to which the dangerous offender sentencing provisions apply. Offenders who commit such offences are eligible, in appropriate cases, for the extended determinate sentence, which allows for long extended licence periods to be imposed on the offender for public protection, and means that the offender must serve at least two thirds of his custodial term in prison. 

The clause adds to schedule 15 the offence under section 4 of the Explosives Act 1883—the one we have already discussed. Although the offence is not currently on schedule 15, it has been identified as an offence that may be charged in serious terrorism cases, so we wish to add it to schedule 15B to the 2003 Act and include it in the enhanced dangerous offender sentencing scheme, which means that it must also be added to schedule 15. The clause also adds to schedule 15 the common law offence of incitement to murder and the offence under the Serious Crime Act 2007 of encouraging or assisting the commission of murder, which replaced the common law offence. Those offences are currently included in schedule 15B but not schedule 15. 

The clause also restates the other provisions about inchoate offences in schedule 15 to include express reference to offences under the 2007 Act. We are also making a minor technical correction to ensure that the correct form of the offence of brothel keeping under the Sexual Offences Act 1956 is on the schedule. 

Dan Jarvis:  As the Minister outlined, the clause adds three offences to schedule 15 to the 2003 Act, making them punishable by life imprisonment or a custodial sentence of 10 years or longer. Those offences are: making or possession of explosives under suspicious circumstances; attempting, conspiring or incitement to commit murder; and keeping a brothel used for prostitution. We do not object to the clause, so I do not propose to spend much time on it. I know that the Committee is keen to make progress, as the most significant reforms to sentencing in the Bill are contained in later clauses. 

As the Committee has already agreed to increase the sentence for making or possessing explosives under clause 1, adding that offence to the schedule is a natural consequential step. The aiding and abetting of murder and the keeping of brothels for prostitution are equally serious offences and require appropriate sentencing. 

Dr Julian Huppert (Cambridge) (LD):  Did I hear the hon. Gentleman say that the aiding and abetting of murder and keeping a brothel are very similar offences? 

Dan Jarvis:  I am happy to confirm that the hon. Gentleman misheard me. I said that they are serious offences. I am grateful that he has given me the opportunity to clarify that. 

There is, however, scant detail in the Government’s impact assessment on the case for extending the sentences for those offences. Currently, keeping a brothel for

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prostitution—a serious offence that can carry many aggravating factors, such as intimidation, abduction and detention—carries a maximum sentence of seven years; raising that to life imprisonment is a significant increase. As I made clear, we are not opposed to that in principle, but could we have some additional information? How many people, on average, are convicted of the offence; what is the average custodial term of those sentences; and what evidence convinced the Government of the need for the increases? 

The Government’s impact assessment acknowledges that the changes to sentencing in part 1 will result in an increase in the prison population of about 1,000 places. It also specifies that there would be demand for 300 of those additional prison places by as soon as March 2020. A number of reforms are contributing to that, and I am sure we will return to the point when debating other clauses, but will the Minister say how many of the additional prison places, if any, relate to the proposed changes to these offences? I should be grateful for that and any other clarification he can provide. I hope that will allow us not to object to the clause standing part of the Bill. 

Jeremy Wright:  The majority of the impact on prison places and on Parole Board hearings arises from clauses 4 and 5. I do not expect clause 2 to have much impact, if any, in that respect. I should explain that we are not increasing the maximum sentence to life imprisonment for the brothel-keeping offence under the Sexual Offences Act 1956. That is a technical change to repair a mistake made in the schedule. The hon. Gentleman will appreciate that the sentences for the other offences covered in the clause are already lengthy, and for aiding and abetting murder, for example, a life sentence is already available. I hope that assists him. 

Question put and agreed to.  

Clause 2 accordingly ordered to stand part of the Bill.  

Clause 3 

Schedule 15B offences 

Dan Jarvis:  I beg to move amendment 8, in clause 3, page 4, line 26, at end insert— 

‘(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 asses sment 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.’.

The Chair:  With this it will be convenient to discuss the following: 

Amendment 9, in clause 4, page 4, line 39, at end insert— 

‘(4) Before this section comes into force the Secretary of State shall—

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(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.’.

Amendment 10, in clause 5, page 5, line 12, at end insert— 

‘(3) 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.’.

Amendment 11, in clause 7, page 9, line 26, at end insert— 

‘(9) 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.’.

Dan Jarvis:  The amendments, which stand in my name and that of my hon. Friend the Member for Hammersmith and which arise from one of the Opposition’s biggest concerns about the proposals in part 1, would require the Secretary of State to consult the Parole Board about the changes he is proposing in clauses 3, 4, 5 and 7. They would also oblige him to lay a report before Parliament detailing his assessment of what the Parole Board will need if it is to carry out the additional hearings likely to result from the changes, and his plans to ensure proper resources. 

Before I discuss their merits, let me summarise the extra demands these clauses will place on the Parole Board. Clause 3 adds to the list of dangerous offenders detailed in schedule 15B to the Criminal Justice Act 2003; that group of offenders can be released from custody only on the Parole Board’s recommendation. Clause 4 would end automatic release at the two-thirds point in a custodial term for everyone serving an extended determinate sentence, and require release to be directed instead by the Parole Board. Clause 5 and schedule 1 end automatic release at the halfway point in a custodial term for a number of offenders serving time for a range of serious offences; those offenders will instead be subject to discretionary release by the Parole Board. Clause 7 introduces a new statutory release test for recalled offenders, again to be conducted by, yes, the Parole Board. 

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9.15 am 

There will clearly be a greater burden for the Parole Board to bear. The Government accept that in the impact assessment; they estimate that there will be at least 1,100 extra Parole Board hearings due to the provisions in clauses 1 to 5 and schedule 1. It is important to note that that estimate does not extend to the potential impact of clause 7, but it is vital that we understand the wider pressures that the Parole Board has to endure. Its work load is rising but its staff numbers are falling: nearly one in five staff have been cut since the last election, many of them vital support staff to the 232 Parole Board members who are paid per hearing. Those staff left are having to clear a backlog of roughly 1,400 outstanding cases and cope with the ramifications of a recent judgment by the Supreme Court. 

The Osborn, Booth and Reilly ruling last October requires the Parole Board to hold more oral hearings, which are deemed to be fairer than paper-based hearings. The Parole Board’s chief executive, Claire Bassett, recently told a meeting of the all-party penal affairs group that the ruling has huge implications for her organisation, and she forecast that the number of oral hearings would jump from about 4,500 a year to as many as 14,000. There has already been a surge in oral hearings, and many are now taking place via video link from the Parole Board’s headquarters in London to prisons around the country. The system has been dogged by computer glitches and technical problems. The Independent on Sunday recently reported a solicitor saying that two of his clients had had their hearings postponed by up to four months because video technology had broken down on the day. The solicitor described the Parole Board as inundated and close to crisis. 

These concerns have been echoed by the Parole Board’s chairman, Sir David Calvert-Smith. He told the Justice Select Committee in December: 

“all bets are off now until we sort out the consequences of Osborn. There are bound to be delays in the short term.” 

He also said that what had traditionally been three people on any one hearing panel might have to be reduced to two or even one. That all adds up to a deeply worrying picture of a system very close to, if not already at, breaking point. The Committee would not be doing its job if we did not ask Ministers for greater clarity on how the Parole Board will be resourced to meet the additional demands the Bill places on it. The impact assessment estimates an additional 50 hearings will be required by 2016 and a further 400 before March 2020. Has the Department factored the implications of the Osborn ruling into these estimates? 

What are the Minister’s thoughts on clause 7 as it links to amendment 11? We are skipping ahead of ourselves, but the impact assessment suggests that the introduction of a new recall test will have a minimal impact on the Parole Board and the size of the recalled prison population. Overall, it estimates this policy will affect only an additional 75 offenders a year, requiring 50 prison places at a cost of £1.5 million a year. The Prison Reform Trust and others have called that an unrealistically low estimate in the light of previous experience. Will the Minister say whether that will be the full extent of the impact, and will he clarify how many Parole Board hearings the changes in clause 7 will require? 

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In proposing these amendments, I hope we can probe the Government into going a little further in laying out what steps they will be taking to ensure that the Parole Board properly understands what the Bill asks of it. The Minister will appreciate the seriousness of this matter: delays in getting a parole hearing also have an impact on the courses and treatments people need and create a need for more prison places. The Opposition are not opposed to automatic release in principle, but a Parole Board pushed into bad decision making because it is under-resourced and overstretched is arguably a much worse prospect. 

Jeremy Wright:  As the hon. Gentleman made clear, the amendments relate to four clauses that he believes will increase pressure on the Parole Board—clauses 3, 4, 5 and 7—and he set out what each one does. 

As I said a little earlier, it is estimated that clauses 4 and 5 will add to the Parole Board’s work load, and as the hon. Gentleman pointed out, we said so in our impact assessment. We do not think that the effects of clause 7 will be very significant, given the overall numbers of standard recalls currently processed by the board, and the effects of clause 3 should be negligible, as few offenders are convicted of the relevant offences. However, as the hon. Gentleman would expect, we have carefully considered the Bill’s impact and the timing of that impact on the board, and we have taken them into account. 

We are confident that the measures will not place unmanageable demands on the board. We have not underplayed the impact or the period during which the impact will be felt. The new determinate sentence, which will form the majority of the increase in the Parole Board’s work load, will apply only to those who are sentenced after the date of commencement. Those offenders, because of the nature of their offences, may receive long sentences; they will have to serve half the custodial term in prison before they can be considered for release by the Parole Board—in other words, it will take quite some time before the first of these cases will start to filter through to the board, and we have taken account of that. As we have said, it is likely to be between 2020 and 2030 before we see the board feeling the full impact of the changes to early release. 

Of course, action needs to be taken and is being taken now on the challenges facing the board following the Osborn judgment, and to ensure that measures are in place to deal with the increase in oral hearings and to avoid the build-up of a backlog. Those measures, including a new operating model that the board is currently developing, will be in place well before the impact of the new sentence set out in the Bill is felt. Also, it must be remembered that this change comes in the context of the number of IPP cases going before the board continuing to decrease over time, as those prisoners are released. 

Finally, I should remind the Committee that potential changes to the demands on arm’s length bodies are not unheard of; indeed, they are a frequent occurrence. There are governance structures already set up to ensure that new pressures on the Parole Board are taken account of and to ensure that the board will be consulted in the course of budgetary allocation decisions. As hon. Members will be aware, the Ministry of Justice is held accountable to Parliament for the discharge of its responsibilities

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and the Parole Board itself reports annually to Parliament. Going into such detail in the Bill itself would not add anything to current governance structures. 

For that reason, although I entirely understand the hon. Gentleman’s concern about these matters, I ask him to withdraw his amendment. 

Dan Jarvis:  Given the assurances we have received from the Minister, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 3 ordered to stand part of the Bill.  

Clauses 4 and 5 ordered to stand part of the Bill.  

Schedule 1 

Sentence and Parole Board release for offenders of particular concern 

Sarah Champion (Rotherham) (Lab):  I beg to move amendment 6, in schedule 1, page 63, line 18, leave out ‘13’ and insert ‘16’. 

The Chair:  With this, it will be convenient to discuss amendment 7, in schedule 1, page 63, line 19, leave out ‘13’ and insert ‘16’. 

Sarah Champion:  It is a pleasure to serve under your chairmanship, Mr Crausby. 

The amendments are very much probing in nature and are designed to get some clarification from the Minister. Paragraph 19 refers to: 

“An offence under section 5 of the Sexual Offences Act 2003 (rape of a child under 13).” 

Paragraph 20 refers to: 

“An offence under section 6 of that Act (assault of a child under 13 by penetration).” 

My underlying question is: why is the age specified 13 rather than 16, which is the age of consent? I have been doing a lot of work with Barnardo’s and we assume we know the reason why, but we want clarity. I could not rest if we missed an anomaly. 

Jeremy Wright:  I am grateful to the hon. Lady for her fair question. I will try to deal with the points she has raised. The amendments would widen the scope of the new determinate sentence we are proposing for offenders of particular concern. The sentence involves Parole Board early release rather than automatic early release. We have applied our proposals to two specific offences set out in the Sexual Offences Act 2003: rape of a child under 13 and assault by penetration of a child under 13. I have already explained that we think that automatic early release is wrong in principle for serious offending; however, we must recognise that at this point there are practical limitations on resources. We have had to start somewhere and we have had to be selective. 

I appreciate that the amendments are probing, but they are defective because the Bill refers to specific offences under sections 5 and 6 of the 2003 Act, which relate to offending against under-13s. The 2003 Act

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does not have corresponding offences of rape or assault by penetration specifically against under-16s. The amendments would not change the offences to which the Bill refers, only the ages, so they would not have the intended effect. 

As the hon. Lady will know, the 2003 Act radically reformed the hierarchy of sexual offences and updated the previously rather Victorian framework. Key concepts of that reform were that there was a particularly serious aspect to offending against children under 13 and that the consent of children of that age was legally immaterial. That is why the 2003 Act sets out specific versions of key non-consensual sexual offences relating to victims under 13. There is no requirement to show that there was no consent in those circumstances. The distinction reflects what is known as “ostensible consent”, which recognises that although legally a young person between 13 and 16 cannot consent to sexual activity, socially the circumstances of such activity would not in all cases give rise to the same public protection issues as sexual activity where younger children were involved. 

There are offences in the 2003 Act that deal with offending against under-16s, but those are not the most serious offences, which are the ones we selected to form part of the new scheme. The 2003 Act was drafted after much consideration and consultation, as the hon. Lady might know. We think that the singling out of offending against victims under 13 is sound and I do not want to unpick those reforms. 

Of course, that does not mean that there is no appropriate punishment for those who offend against children under 16. Tough sentences, including life in the most serious cases, are available for the same offending committed against under-16s, and sentencing guidelines oblige courts to sentence more robustly where victims are particularly young and vulnerable. The offences of rape and assault by penetration are subject to the enhanced dangerous offenders sentencing scheme, which means that offenders may receive an extended determinate sentence, under which only the Parole Board can approve early release, where the court thinks that they present a substantial risk of reoffending. The offender might also face an automatic life sentence if they commit a second very serious offence included in the scheme. 

Although I sympathise entirely with what the hon. Lady is trying to achieve, I cannot accept the amendments. As I have explained, they would be inconsistent with the basis of our sexual offences framework. They are also impractical in the current financial climate. She and I would agree that it is sensible to look again at the issue, as and when we can, but at this stage I ask her to withdraw her amendment. 

Sarah Champion:  I could argue with the Minister that a child cannot give informed consent, but I accept his argument about under-13s. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

9.30 am 

Jeremy Wright:  I beg to move amendment 2, in schedule 1, page 66, line 20, at end insert— 

‘Road Traffic Offenders Act 1988 (c. 53)

10A (1) Section 35A(4) of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed) is amended as follows.

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(2) In paragraph (e), for “that Act” (in the first place) substitute “the Criminal Justice Act 2003”.

(3) After paragraph (f) insert—

“(fa) in the case of a sentence under section 236A of that Act (special custodial sentence for certain offenders of particular concern), a period equal to half of the term imposed pursuant to section 236A(2)(a) of that Act calculated after that term has been reduced by any relevant discount;”.’.

The Chair:  With this it will be convenient to discuss Government amendment 3. 

Jeremy Wright:  Amendments 2 and 3 are minor and technical consequential amendments to the Road Traffic Offenders Act 1988, and the Powers of Criminal Courts (Sentencing) Act 2000. 

Clause 5 and schedule 1 create a new custodial sentence for those convicted of offences of particular concern, which are listed in new schedule 18A to the Criminal Justice Act 2003, as inserted by schedule 1. The new custodial sentence involves a custodial term and a year’s licence period. The offender is eligible to be considered by the Parole Board for release from the halfway point of the custodial term. 

The provisions in the 1988 and 2000 Acts relate to a duty on the court to impose longer driving bans on offenders who receive a driving ban and a custodial sentence on the same occasion. The purpose of the statute is to ensure that the driving ban will remain in force for an appropriate period after the offender’s release, as driving bans run from the beginning of a sentence. The amendments replicate the provision made for other types of custodial sentence in the driving ban legislation. They provide that the court should calculate by how much to increase the driving ban with reference to the potential earliest release point for those sentences. 

Dr Huppert:  What is proposed is a sensible step. There have been several cases where people who have accumulated a large number of points on their licences do not get driving bans, because they say that there are exceptional circumstances. The record is something like 30 or 40. Will the Minister assure the Committee that similar exceptional circumstances will not arise in the cases covered by the amendment? Is he doing anything to solve the general problem? 

Jeremy Wright:  My hon. Friend invites me to go slightly beyond the scope of the Bill, as he appreciates. I can say, first, that the amendments deal with the length of a driving ban imposed at the point of sentencing. He is right that in the case of accumulated penalty points there is an opportunity for the sentencing bench to determine that exceptional circumstances exist. I am sure that my hon. Friend accepts that it cannot be for a Minister to determine what those are; it is for the bench to do so on every occasion, based on the merits of the case. 

In relation to the broader point about whether we are looking at the matter again, the answer is yes. 

Dr Huppert  rose—  

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Mr Robert Buckland (South Swindon) (Con):  Is it not right that mere hardship is not enough? Exceptional hardship is necessary in the case of totting-up offences. 

In the Bill, are the disqualifications that we are concerned with obligatory, or are discretionary disqualifications included too? The point that has been made is important. A three-year driving ban can be meaningless if the defendant is serving a prison sentence, and the public are rightly concerned about that. 

Jeremy Wright:  I am grateful for my hon. Friend’s first point. He speaks with the experience of someone who, occasionally, sentences. I am sure that the Committee is grateful for his experience. 

My hon. Friend is also right about the fact that the provisions we are debating refer to discretionary as well as compulsory disqualification. I also agree with him that it clearly would not be right for a driving ban to be eaten up entirely by a period spent in custody. That would defeat the object of the ban. We are keen for the sentencer in every case to take account of the period that will be served with no opportunity for driving, and to ensure that there will be an appropriate period thereafter covered by a driving ban. We hope that the amendments will achieve that, at least in part. My hon. Friend the Member for Cambridge looks content, so I shall leave it at that. 

Dan Jarvis:  I thank the Minister for explaining the detail. As he said, the amendments are consequential on the creation of a new offence in clause 5, and they ensure that a driving ban can be extended when a custodial sentence is imposed. The change seems to be a technical, sensible and necessary one, and we have no objection to the amendments. 

Jeremy Wright:  I do not think that I need say any more, Mr Crausby. 

Amendment 2 agreed to.  

Amendment made: 3, in schedule 1, page 66, line 27, at end insert— 

‘Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

11A (1) Section 147A(4) of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of disqualification where custodial sentence also imposed) is amended as follows.

(2) In paragraph (e), for “that Act” (in the first place) substitute “the Criminal Justice Act 2003”.

(3) After paragraph (f) insert—

“(fa) in the case of a sentence under section 236A of that Act (special custodial sentence for certain offenders of particular concern), a period equal to half of the term imposed pursuant to section 236A(2)(a) of that Act calculated after that term has been reduced by any relevant discount;”.’.—(Jeremy Wright.)

Schedule 1 , as amended, agreed to.  

Clause 6 

Electronic monitoring following release on licence etc 

Dan Jarvis:  I beg to move amendment 15, in clause 6, page 5, leave out from line 36 to line 25 on page 6. 

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Amendment 15 stands in my name and that of my hon. Friend the Member for Hammersmith. Let me say at the outset that the Opposition are in favour of electronic monitoring. If done in the right way and combined with good quality supervision, it can be an effective tool for greater public safety and for rehabilitating offenders. As technology develops, it makes sense for us to make full use of the latest advances. With that said, however, the Committee will be aware of the recent news of the £214 million being repaid to the taxpayer by Serco and G4S following the recent monitoring scandal, which serves as the clearest possible reminder that this area needs to be managed with caution and subjected to the right level of public scrutiny. 

Sarah Champion:  I am grateful that my hon. Friend brings up the false accounting, but I would like to highlight an example from Rotherham where an offender was out on release with an electronic tag that did not work. He did not realise for three months that the tag was not working, but the placebo effect worked and he kept to the terms of his release; however, the authorities would have been none the wiser had he breached them. We therefore need quite considerable investment to make a scheme such as this work. 

Dan Jarvis:  I am grateful to my hon. Friend for that timely intervention, which serves as a reminder that such issues require close scrutiny and detailed debate. I therefore hope that amendment 15 will afford Ministers the opportunity to address two significant issues with the clause. First, there is a significant lack of important detail on and supporting evidence for the measure. Secondly, many questions remain as to how the power will be exercised and whether it is required in the first place. 

The problem concerning evidence is well demonstrated by the Government’s impact assessment, which makes it clear that the new electronic monitoring condition will come with a range of costs, including equipment and hardware costs for multi-purpose ankle tags, monitoring, network provision, equipment failure, offender managers having to deal with breaches, police enforcement, additional prison places resulting from improved detection rates and breaches of licence conditions and other criminal justice costs associated with investigating further offending. Having detailed that comprehensive list of costs, the impact assessment then states: 

“We are not able to quantify costs associated with the implementation of electronic monitoring at this stage”. 

It goes on to note that the private sector procurement process is still ongoing and that electronic monitoring is not currently in widespread use across England and Wales. 

Sarah Champion:  My hon. Friend hits the nail on the head. We are asked to make a judgment on the proposal, but no costs have been provided on which we can make that judgment. Given the costs of making such an extensive system actually work, I contend that the investment might be better spent on rehabilitation or health issues. We cannot make an informed decision because the costs are not in front of us. 

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Dan Jarvis:  I am again grateful to my hon. Friend. I hope that our debate in Committee on the issue will be constructive and useful and give the Minister the opportunity to provide more detail on what are legitimate questions. As I said, we support electronic monitoring in general, but it is important that we take the opportunity to satisfy ourselves that the decisions and the policy proposals in the Bill are underpinned by evidence. 

The Government’s impact assessment also 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 ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact.” 

I hope the Minister will understand that that leaves the Committee in a rather difficult position. We are being asked to approve legislation that will deliver, possibly, benefits, but we do not know what, and that will definitely come at substantial cost, but we do not know how much. 

The impact assessment outlines four significant risks associated with the proposals on electronic monitoring. First, the technology may not be able reliably to deliver the required service at a cost that represents the anticipated value for money. Secondly, the use of monitoring may fail to provide the expected level of deterrent effect. Thirdly, there may be an additional burden on the criminal justice system, as the volume of offences likely to be detected by monitoring that would previously have gone undetected, is unknown. Finally, the new licence conditions associated with monitoring may lead to an increase in breaches and, as a result, prison places. Again, however, the impact assessment admits that the number of additional prison places required “cannot be accurately estimated”. 

It should also be noted that much of the impact assessment relies on studies carried out in 2004, 2005 and 2007. However good those studies were, many people may express surprise that there is no more recent evidence to support a proposal that hinges on the use of the latest cutting-edge technology. There are also issues with the consultation paper. Even the House of Commons Library’s research paper accompanying the Bill acknowledges that the consultation paper published alongside the Government’s announcement of GPS monitoring last May did not discuss electronic monitoring in any detail. 

That consultation also said that the Government were working with the Information Commissioner to develop a code of practice for monitoring. I think most members of the Committee would agree that that is a positive step, but in an answer to a parliamentary question on 4 March, the Minister was unable to provide any further detail on how that was progressing, or when the code would be published for parliamentary scrutiny. I would therefore be grateful if he provided further information on the matter in his response. 

There is also the question of how the policy will apply in practice. As it stands, clause 6 will allow for a mandatory electronic monitoring condition to apply to offenders released from custody on licence. That contrasts with the discretionary condition under the current law. Importantly, the current law already allows for the electronic monitoring of offenders released on licence. Those powers are contained in the Criminal Justice and Court Services Act 2000. 

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The Committee will also remember the testimony that we heard from Justice’s Angela Patrick during our evidence sessions. She was clear that “these powers exist”. If a judge wishes to tag an offender, they can do so on a discretionary, case-by-case basis. That raises questions as to whether the blanket approach outlined in subsection (3) is necessary. In selecting entire groups of offenders for monitoring, it is important that we do not prevent offenders’ individual risks and circumstances from being taken into account. I know that everyone on the Committee will be eager to limit the potential for mandatory electronic monitoring to be used where it would be wholly inappropriate, such as where there is a risk of domestic violence, for example. Although there are some mechanisms to safeguard against inappropriate use, they are currently vague and rely on just a couple of illustrative examples in the explanatory notes. Any assurances the Minister can offer on safeguards would therefore be most welcome. 

9.45 am 

Sarah Champion:  My hon. Friend mentions domestic violence, and I draw the Committee’s attention to written evidence from the Criminal Justice Alliance. Although it recognises the benefits that electronic tagging can have, it cautions that we should not assume that all offences will be captured, saying: 

“Electronic tagging only monitors an individual’s whereabouts and not their actions. Thus, criminal behaviour, such as drug dealing or handling stolen goods, may be brought into the family home, impacting on everyone living there, if offenders know their whereabouts are subject to surveillance. Also, whether an offender is a perpetrator of domestic violence must be considered before confining him or her for long periods at home under a curfew monitored by electronic tagging.” 

I caution the Minister against seeing tagging as a catch-all for everyone, as we still need support in place. The last time that I was in Committee with the Minister, we were talking about the probation service, and I urge him to consider, alongside electronic tagging, the rehabilitation for offenders that the probation service can provide. 

Dan Jarvis:  I am grateful to my hon. Friend for that intervention. She makes an incredibly important point and I look forward to hearing the Minister’s response to it. 

It should be noted that clause 6 allows the Secretary of State to determine, by order, the groups of offenders to which the measure will apply, which gives Parliament limited opportunity to scrutinise that important condition. Proposed new section 62A(3)(b) of the 2000 Act, which our amendment would delete, will make it possible to require people to be monitored electronically “on a sampling basis”, which could mean that even those outside the groups defined by the Secretary of State might be subject to monitoring, irrespective of the risk that they pose or the discretion of trained practitioners. That would represent a significant precedent, even if the intention was only to conduct research. 

I remember the powerful arguments made on Second Reading by the former Minister for Policing and Criminal Justice, the right hon. Member for Arundel and South Downs (Nick Herbert), and the hon. Member for Hexham, both of whom were in favour of greater involvement by local communities and police and crime commissioners in the use of new technology. That point is good and

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laudable, but it might run counter to the Bill’s provisions, which will centralise decision making to the Secretary of State. 

We hope that the debate on the amendment will allow us to probe the proposals and extract further information about how they will work in practice. No one doubts that electronic monitoring, in one form or another, will be an important tool for the criminal justice system, but how that will be done, how much it will cost, to whom it will apply and what impact it will have are important questions. We will be grateful for any assurances that the Minister can provide. 

Dr Huppert:  It is a pleasure to serve under your chairmanship, Mr Crausby. I do not want to repeat all the comments that I made about this issue on Second Reading, but it would be useful to hear more from the Minister to reassure me and many others. I share many of the concerns raised by the shadow Minister and it would be helpful to have clarity so that we can resolve a number of them. There is an awful saga with regard to such things as overcharging. 

There are two specific issues on which I would be grateful for the Minister’s clarification, one of which I raised on Second Reading: the evidential use of the tags. My understanding is that there are numerous cases in which prosecutions based on tag evidence have not been successful because expert witnesses have demonstrated that one cannot be sure that they are reliable. People such as Professor Ross Anderson from my constituency has been an expert witness in such cases. Clearly, it is not helpful if the tags simply will not stand up in court. There might be a placebo effect, but there will not be the desired success rates. Will the Minister clarify whether there are improvements, what the evidential status is and how sure he is of successful prosecutions when someone has breached carrying a tag? 

May I also press the Minister to say more about proposed new section 62(5A)(b) of the 2000 Act in clause 6(2)(b)—I apologise for the complex naming—which refers to 

“electronic monitoring of the person’s whereabouts (other than for the purpose of monitoring compliance with another condition of release)”? 

I understand the logic of monitoring whether people are doing what they have been told that they must do, but monitoring something that they have not been told they must do is another step. I have heard suggestions that this is about their ability to prove that they were not involved with another crime or activity, but how will the data be stored? Many concerns have recently arisen about what happens to Government-held data. Who will have access to the data and for what purposes? Will the data be subject to constraints similar to those under the Regulation of Investigatory Powers Act 2000 or to more serious ones? How will everything be dealt with? We do not want a massive database logging where more and more people are at all times, as that goes a lot further than trying to ensure that someone complies with a curfew. 

Yasmin Qureshi (Bolton South East) (Lab):  Does the Minister think it is appropriate to have a rule stating that every single person released should have electronic monitoring tagging? Judges should retain an element of discretion when they are sentencing because not every

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case will justify tagging. It is appropriate to leave the determination to the judge or magistrate in each case in light of the circumstances of a particular individual—his or her previous history and track record, what they have been doing, and the offence they have been convicted of, including the manner and method of the offence, and who the victim is. Those can be important factors in determining whether electronic tagging is needed, or if ordinary conditions can be attached and kept. 

Mr Buckland:  The hon. Lady makes an interesting point, but as I read the clause, the conditions under subsection (2) following release on licence and so on “may” include electronic monitoring. I note, too, that there is a requirement that there “must” be 

“provision for making a person responsible for the monitoring”, 

so is there not a degree of discretion in the Bill? 

Yasmin Qureshi:  My point is about the ambiguous nature of the Bill. If it stated that, when giving conditions, one of the things to be considered would be electronic monitoring, that would be fine. I stand to be corrected, but the Bill’s drafting does not seem to state that. As I understand it, the Bill does not provide for proper discretion. Judges and magistrates should be able to decide in any particular case whether someone should have electronic monitoring because, to repeat myself, not everyone will need it. 

Secondly, I want to touch on the impracticalities. As someone who spent many years not only prosecuting but defending, I have a reasonable knowledge of the criminal justice system, and whenever electronic tagging has been used, the case has been difficult to prove in court. A whole lot of evidence is needed and the process costs a lot of money and takes up a lot of time. Of course, the defendant will normally be represented, so the process takes up court time, which means lawyers, prosecutors and judges. Often, at the end of the case, we have acquittals because it was argued that the technology was weak, or that a breach was inadvertent, so the courts are minded not to deal with it. I therefore wonder about the whole approach. 

Technology can be good, but I am not sure whether using it in so many cases will be helpful in dealing with mischief as intended, or that all the money and effort will be necessary. The costs are for not only investigation and detection, but getting to court and the hours of court time, after which little is obtained. I remember dealing with breaches of bail and the wholesale problems involved in such cases. I am not an expert, but as someone who has been involved in the criminal justice system, I wonder how much value such electronic systems have. 

Jeremy Wright:  I am grateful to Committee members for the debate and I will try to pick up on their points. 

The hon. Member for Barnsley Central made it clear that his amendment would remove from the Bill provisions that would allow compulsory electronic monitoring conditions to be imposed on offenders on release from custody. As he recognises, electronic location monitoring is important for many reasons. It is important that we take advantage of developments in technology to monitor

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and manage offenders effectively. Having the means to monitor an offender’s whereabouts will help us to enforce exclusion zones and therefore give better protection to victims. Location monitoring should also act as a deterrent to further offending. 

Mr Andy Slaughter (Hammersmith) (Lab):  The Minister puts his finger on the problem. The means are available because technology has advanced substantially so, rather unthinkingly, the Government have taken a blanket approach. There is a twin problem of extending not just the extent but the role of monitoring—it is now location, rather than enforcement monitoring—and, to try to mitigate that, the power to control when monitoring is used is being put in the hands of the Secretary of State, which also has a downside. Does not the Minister think that he is rather rushing ahead with the white heat of technology? 

Jeremy Wright:  I try not to do anything unthinkingly, and much less to rush ahead, but it is important that we take advantage of what the new technology can offer. If we are now able to track an offender’s movements and be clear about where there are, rather than simply where they are not—that is all that existing monitoring technology permits us to know—we have scope to do more to protect victims and to deter further crime. The hon. Gentleman is right that it is important to have safeguards, but it is also important that we do not miss the opportunity that the new technology will give us. 

Mr Slaughter:  I should like to clarify my first point. Does the Minister accept that what he is doing is quantitatively and qualitatively different? Monitoring location is a different approach to tagging than simply trying to enforce conditions that the court may have laid down. If he accepts that, what is his considered position about why the change would come about? 

Jeremy Wright:  There are two points to make. First, the hon. Gentleman will recognise that the ability to monitor whereabouts already exists in criminal law. It is not the case that there is only the right to impose a monitoring condition for the enforcement of other conditions; it is also possible to impose a monitoring condition as a stand-alone condition. 

Secondly, we are talking about people moving from a custodial part of their sentence on to the period of licence, so we have every right to have some control over their movements and to know where they are. These are not general members of the public who have done nothing wrong; they are people who have already been convicted of an offence and are still subject to the rules that apply to that sentence during their period of licence. We should not lose sight of that. 

Mike Kane (Wythenshawe and Sale East) (Lab):  Sir Peter Fahy, the chief constable of Greater Manchester, said recently that it would be cheaper to put a constable in each problem family’s front room than it would be to have criminal and judicial systems. As the Ministry of Justice has had a £23 million clawback from G4S, according to the National Audit Office report of last November, does not the Minister think that there is room for experimentation? 

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Jeremy Wright:  To some extent, of course, what we are discussing does permit trialling or piloting various approaches with the new technology that we have available. If the hon. Gentleman looks carefully at the clause, he will see that there is an opportunity to do precisely what he suggests. I am also grateful for his endorsement of and support for the approach taken by the troubled families programme, a fine coalition initiative that does exactly what he is describing by looking at troubled families in the round. That is a sensible way of engaging with Government policy, so he is absolutely right about that matter. 

Guy Opperman (Hexham) (Con):  The Minister makes a fair point. I endorse his argument about the troubled families programme because that is clearly a good step to build on what the previous Government did. I have two simple points. First, is it not right that the process by which we do electronic tagging will save the taxpayer money, thus allowing us to spend the Ministry of Justice’s budget on the things that we really want to spend it on, such as rehabilitation? Secondly, is there not evidence that taking someone out of prison and tagging them enhances and improves the likelihood of rehabilitation and retraining and, therefore, the likelihood of them not reoffending? 

10 am 

Jeremy Wright:  My hon. Friend is right on both counts. When we consider the costs that may be incurred by this programme or any variant of it, it is necessary to consider the money that would be saved by the avoidance of further offending. There is a real deterrent effect. It is common sense: if someone has a tag around their ankle that they know will detect their whereabouts, it not a good idea for them to go out and burgle a house or commit any other offence. 

In every calculation of what we think the measures might cost, we have to think about what they may save. As my hon. Friend well knows, the cost of crime is not simply financial. It has a human cost as well, and we have an obligation to look at every possible way to reduce the rates of reoffending. As he knows, that is at the heart of many of the things we are trying to do in the Ministry of Justice at the moment. 

Let me respond to some of the points that have been made during the debate. Location monitoring should also act as a deterrent to further offending, as I have said. The advantage of the new technology we are discussing is that the offender will know that he or she can be placed at the scene of a crime. Any breach of the licence condition, such as the removal or attempted removal of the tag, will raise an alert and the offender can be recalled to custody if appropriate. The information gathered can be shared with the police, making the investigation of crimes more efficient. As my hon. Friend the Member for Cambridge said, we will be able to rule offenders in or out of investigations more quickly. The code of practice for data sharing will ensure that safeguards are in place concerning the management of information. 

Valerie Vaz (Walsall South) (Lab):  Clause 6(3) will insert new section 62B into the Criminal Justice and Court Services Act 2000. That provision refers to the issuing of a code of practice. What position has the

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Minister reached in his discussions on the code of practice with the Information Commissioner, and when is it likely to be published? 

Jeremy Wright:  I cannot give the hon. Lady a date, but she is right that consultation with the Information Commissioner is important. We will have that consultation when drawing up the code of practice, which will be important guidance on some of the matters we have already spent time discussing. 

Location monitoring is an important element of our strategy to improve public protection, reduce reoffending, as I said in answer to my hon. Friend the Member for Hexham, and assist in the successful detection and prosecution of crime. Clause 6 provides for compulsory electronic monitoring conditions to apply to offenders who are released from custody subject to conditions—for example, on licence. The electronic monitoring condition may be for the monitoring of compliance with another condition. As I said to the hon. Member for Hammersmith, it could also be for the monitoring of whereabouts as a stand-alone condition. As I say—going back to a point raised by my hon. Friend the Member for Cambridge— that is already part of law. We would apply those provisions to those who are on licence. 

Currently, the legislation provides for those electronic monitoring conditions to be imposed on a discretionary basis. However, in practice the available technology has allowed only for the electronic monitoring of a curfew condition. We now have the opportunity to take advantage of technological advances which make it possible to track offenders effectively in the community. 

The clause provides flexible order-making powers so that a compulsory condition could be targeted on specified groups of offenders, and the duration of the compulsory condition could be specified if it is to be shorter than the licence period. In answer to the issue raised by the hon. Members for Barnsley Central and for Bolton South East, importantly, it is not the judge who currently decides licence conditions but, effectively, prison governors, on behalf of the Secretary of State. 

Mr Buckland:  That distinction is important, because we are talking about conditions on licence as opposed to any decision made by the court. It is therefore an Executive power, which is why spelling it out in primary legislation is vitally important. Within that, as my hon. Friend is outlining, there is discretion as to how we now use that power. There is an increased and enhanced potential for using it to monitor certain conditions, as opposed to only residence and curfew. Surely, that must be a welcome initiative and a welcome harnessing of technology. 

Jeremy Wright:  My hon. Friend is right, and I certainly hope that it will be welcome. He is also right that the element of compulsion here applies to the group or groups to which we consider it sensible to apply electronic monitoring. It does not oblige the Secretary of State to apply electronic monitoring to everybody who leaves custody on licence, although he could of course do so if he thought that was the most appropriate use of the power. It should also be said that an order may prescribe which offenders must be subject to compulsory electronic monitoring, either by type of offence or indeed by type of sentence. 

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The Secretary of State will also be able to specify which offenders will be subject to compulsory electronic monitoring by reference to whoever is monitoring the offender, for example the national probation service. Of course, there may also be random sampling for the purposes of pilots, which goes back to the point made a little earlier by the hon. Member for Rotherham. 

It is important that the Secretary of State may also provide for cases in which the compulsory condition should not apply. Earlier, the hon. Member for Rotherham mentioned domestic violence. I should make it clear that we are talking about a compulsory condition for the monitoring of offenders’ whereabouts, not a compulsory curfew condition. I quite understand the concerns that have been expressed about confining someone to their home in certain domestic violence cases, but that is not what we are talking about here. We are talking about monitoring someone’s whereabouts, rather than a compulsory curfew condition. 

Sarah Champion:  On the database, which the Minister briefly mentioned, will he address the point made by the hon. Member for Cambridge about who will own the database, how long the information will be kept, and whether the state alone will have the information? Of course, we have concerns at the moment about databases being sold off. 

Jeremy Wright:  I believe that my hon. Friend the Member for Cambridge is concerned about the evidential requirements that apply to this process, and I will certainly come on to that in a moment. Before I do, let me finish the point I am making about the circumstances in which the Secretary of State may provide for this condition not to apply. For example, there may be cases where he is satisfied that the offender has physical or mental health issues which mean that the condition is unsuitable, or where it is not possible to make arrangements for the offender to recharge the battery in the tag. Indeed, such an issue may have prompted the amendment. I therefore want to stress that taking a power by order to require the condition to be imposed should not lead to its imposition in unsuitable cases. The order can prescribe cases where the condition will not apply. 

Returning to the point made by my hon. Friend the Member for South Swindon, there would also be some operational discretion in determining whether an offender’s circumstances meant that he fell into that category of case. For example, there may need to be an assessment of an offender’s physical or mental health issues. The compulsory licence condition may apply to any adult offenders released subject to conditions, and to any young offenders serving a public protection sentence and released subject to conditions. For other sentences, such as detention and training orders, electronic monitoring conditions will remain discretionary. As I have said, the information gathered by electronic location monitoring may be shared with other agencies such as the police, but this will be subject to a code of practice. 

I turn now to the point made by my hon. Friend the Member for Cambridge about evidential requirements. He is absolutely right that, as part of the contractual negotiations to find a suitable provider for this equipment, we are concerned to ensure that the evidential requirements

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that the equipment will need to meet are satisfied. We will not award contracts unless we are satisfied that the equipment both generates the information necessary to prove a case in court, and retains it for the appropriate period. This point was made by the hon. Member for Bolton South East from her own experience, and as she says, it is very important that this equipment generate the necessary evidence to gain convictions in appropriate cases. We must make sure that it does. 

At this stage, perhaps it might be helpful to mention that schedule 2 makes consequential amendments relating to these provisions. These include an amendment to enable compulsory electronic monitoring to be imposed on a life sentence prisoner without a recommendation or direction from the Parole Board. The clause therefore provides for a compulsory licence condition, but with powers to apply it flexibly. That will allow us to learn what works best for different offenders, in order to target compulsory electronic monitoring to best effect. 

Some concerns have been raised about the cost and reliability of the technology. I cannot give the Committee information about the costs, for two reasons. First, we are in the process of negotiating contracts for providing this equipment, so we cannot be precise about cost. Secondly, because of the discussion we have already had about the circumstances in which the Secretary of State may decide that it is appropriate to impose this condition, we do not yet know the breadth of its use and, therefore, the resulting likely cost. 

Valerie Vaz:  Would that be committed expenditure before or after 2015? 

Jeremy Wright:  With the best will in the world, it is highly unlikely that the provision we are discussing will become effective until 2015, so we are talking about expenditure not in the next financial year but in a period after that. In any event, we would also want to be satisfied that the equipment will be effective and will work as we wish it to before rolling this project out. We are inviting the Committee to approve an order-making power that will enable the Secretary of State to do that when the circumstances are appropriate. 

Mr Slaughter:  What the Minister says is quite alarming: that in effect this relationship will be delegated, and will be between the Minister of the day and the private tagging companies. As we have said, the record of those companies is very poor, but so is the Government’s, in that they have been led by these companies into unwise developments, rather than keeping control. Will there be no parliamentary scrutiny? Looking further ahead, is the Minister not concerned that this is going to get out of control? 

Jeremy Wright:  As I have said, decisions on electronic monitoring are already made by the Executive. These are decisions made in relation to those receiving licence conditions by prison governors on behalf of the Secretary of State, not by the judiciary, so there is no change. The hon. Gentleman is absolutely right that it is important in any contractual relationship between Government and private sector providers that we have robust contract management measures, and we are changing contract management substantially within the Ministry of Justice to ensure that we do. 

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However, the hon. Gentleman would not expect me to miss the opportunity to point out that the electronic monitoring contracts he is talking about, with Serco and G4S, were negotiated by the last Labour Government in 2005, and they were in office for most of the period during which these contracts were apparently abused. I am afraid that this is one of those situations where the Labour Government made a mess and we are obliged to clear it up. This Government discovered the problem, remedied it and are dealing with the contract management aspects that he is concerned about. As for the bad behaviour by those that his Government engaged in contractual relations with, we have not only referred them to the Serious Fraud Office but recovered a substantial amount of taxpayers’ money, too. This is not a record of failure on the part of this Government. 

Dr Huppert:  I hope to understand more about the code of practice and how it will be put together. Will the Minister also explain the amendment to section 62B(2) of the Criminal Justice and Court Services Act 2000? It states: 

“A failure to observe a code issued under this section does not of itself make a person liable to any criminal or civil proceedings”. 

Does that not undermine the role of the Information Commissioner? I hope the Minister will say more about how he will deal with this. 

Jeremy Wright:  My hon. Friend will appreciate there is a good deal of consultation to be done first on the code of practice, and I am sure he will wish to contribute to that process. I want to say very little more about this at the moment, but it is a process that will continue. 

Mr Slaughter:  I want the Minister’s normal, sensible answers to my questions. I am afraid that when he does the knockabout, he sometimes loses plausibility. 

Whatever the previous practice has been, this is a substantial increase in the ambit of tagging. Whoever was responsible for contract monitoring in the past, we know it has not worked; I am thinking particularly of those companies that have abused their position, perhaps aided and abetted by poor contract management. It is a serious issue that the Minister has to address. At a time when they are paying back hundreds of millions of pounds, he is saying, “Right: we are going massively to extend their competencies in this area.” He needs to take the issue more seriously. 

10.15 am 

Jeremy Wright:  We have taken the matter extremely seriously. My point, whether knockabout or not, is entirely based on the facts, as set out most recently by the Chairman of the Public Accounts Committee, who is by no stretch of the imagination a Conservative partisan. That is what has gone on. 

The hon. Gentleman is right, however, that this is a serious issue. If we are to get the most out of the technology, as we seek to, we must ensure that contract management is robust. As I said, we recognise that, in relation to the contractual relationships, on these particular occasions the contract management was not sufficiently robust. It needs to be improved and we are making substantial changes to ensure that it is. 

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The hon. Gentleman will also note that neither G4S nor Serco is a preferred bidder for the electronic monitoring contracts that we are currently negotiating for the new, much more capable ankle tags and the technology that goes with them. It is not that we do not take the matter seriously, but it is important for the Committee to be aware of the history. 

Finally, we will not be using the powers provided in these provisions until the technology has been fully tested. We are taking the powers now so that we can make full use of the new technology as soon as it is ready. I hope that in explaining the clause, including the safeguards it provides, I have addressed many of the concerns about how the powers may be used. We must take advantage of any developments that can lead to the better management of offenders in the community and drive down unacceptably high reoffending rates. I ask the hon. Gentleman to withdraw his amendment. 

Dan Jarvis:  Our hope in tabling the amendment was that we would be able to probe the proposals and extract further information on how they will work in practice. As I said, no one doubts that electronic monitoring will be an important tool for the criminal justice system, but in determining how this will be done we must be mindful of the previous abuse. How much it will cost, who it will apply to, what impact it will have and, importantly, where it might lead us in the future are all important questions. Clearly, it is right to look at the matter closely, as we have this morning. I ask the Minister to be mindful of the concerns raised by the Committee. We will return to the issue in future, but for now I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Dan Jarvis:  I beg to move amendment 37, in clause 6, page 6, line 29, at end insert— 

‘(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.’.

The Chair:  With this it will be convenient to discuss amendment 38, in schedule 4, page 73, line 25, at end insert— 

‘(1A) Where the Secretary of State enters into a contract with another person under paragraph 1(1), and that person is not a public authority for the purposes of section 3 of the Freedom of Information Act 2000, that person shall be designated by the Secretary of State as a public authority for the purposes of that section in relation to that contract.’.

I remind the Committee that this group is about freedom of information provisions as they apply to aspects of the Bill. Members will have the opportunity to debate the detail of secure colleges later. 

Dan Jarvis:  I serve notice that, unless sufficient assurances are received, we intend to put the amendments to a vote. [ Interruption. ] Dramatic! I sensed for a moment that there was a higher authority raising a concern about these amendments, but I shall plough on regardless, confident in the knowledge that they are true and right. 

Anyone who knows the story of Jajo the rabbit will understand what I am about to say. For those members of the Committee who do not know, Jajo was the pet rabbit successfully registered as a court translator and then booked in for shifts following the Ministry of

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Justice’s outsourcing of language service contracts. Jajo’s short-lived translation career says less about his talent and much more about the importance of ensuring that public contracts delivered by private providers are properly managed. 

As was touched on, Ministers now have to manage another fall-out. Two private providers of electronic monitoring overcharged the taxpayer by millions of pounds for tagging offenders who had died or moved abroad, or who were already back in prison. That underlines the case for the amendments. 

Both amendments would seek to bring non-public providers of public services contracted out under the Bill within the scope of the Freedom of Information Act. Amendment 37 relates to clause 6 and the code of practice that would be issued by the Secretary of State on the processing of data related to electronic monitoring. It would require anyone carrying out monitoring related to the clauses to comply with FOI requests in the same way as public bodies do. Amendment 38 relates to schedule 4 and the arrangements for contracting out secure colleges, which are detailed in part 2. It would require anyone contracted to provide a secure college to comply with freedom of information in the same way. Both our proposals are worthy of consideration by the Committee. 

We all know that the landscape of how public services are delivered is changing. The Government spend £187 billion on goods and services with third parties each year, about half of which is estimated to be on contracting out services. About half of all spending on public services now ends up in private providers’ hands and more and more private providers are bidding to take on the responsibility and financial rewards that come with large-scale public contracts. As outsourcing is stepped up, more and more information about public services and public money is being pulled out of the public domain. That presents a particular challenge that we must tackle. 

As the Information Commissioner told the Justice Committee last year, 

“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?” 

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 about how, and how well, the service they are paying for is being run. 

The Freedom of Information Act does provide for supply-chain companies to be considered to be holding information on behalf of a public authority. In practice, however, contracted providers in the justice sector are not subject to anywhere near the same transparency requirements as publicly-run services. Private prisons, for example, are not subject to FOI in the same way as public prisons and the experience of G4S, Serco and others will have influenced many other companies not to be as forthcoming as they might have been. That is why we need to build freedom of information into the contracts that the Government make with third parties. 

The Committee will be aware that such an approach was recommended by the Public Accounts Committee in its excellent report published last week. It made the

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point that many Departments are not providing information on how those contracts work on the grounds of commercial confidentiality. The public will not accept that excuse for much longer. 

Let me conclude my remarks by offering the Committee a final quote. Someone once said: 

“Information is power. It lets people hold the powerful to account” 

and it should be used by them to hold their 

“public services to account”. 

I agree with the Prime Minister. Two years ago, he spoke about 

“the power of transparency” 


“why we need more of it.” 

He also spoke of leading 

“the most transparent Government ever.” 

Labour has pledged that the next Labour Government will deal with the issue by bringing companies providing public contracts into the scope of FOI legislation. 

Freedom of information can be uncomfortable. It can shed light on difficult issues and be problematic for Government Ministers, but that is the point. The Committee has the opportunity today to improve the Bill and to get a head start. 

Dr Huppert:  I will not detain the Committee. I share the concern about the lack of FOI for private organisations providing public services. My colleagues and I have expressed concerns about that for many years, and the previous Government were not very good at accepting that. It is good news that the Labour party may undo that error. 

Mr Slaughter:  Can the hon. Gentleman say what steps he and the coalition have taken to extend FOI in the past four years? 

Dr Huppert:  Not as many as I would like, but we have seen progress in some areas; we did not see any at all when the hon. Gentleman was a Minister. I hope we will see the correct drive. I share the concern that we need transparency when public services are delivered by private companies. They must not be shielded. I look forward to hearing what the Minister has to say, because he has commented on such issues before. 

It is important that the matter should be dealt with on a global scale. I think the shadow Minister would agree that the case is broader. I hope to hear from the Minister that there will be more work to look at how the issue can be addressed more generally, rather than just in a specific case. That would probably require amendment of the Freedom of Information Act. That is probably the best way to resolve the issue, rather than tacking it on to this area, but I absolutely share the concerns. I hope we can see more transparency, both from the Government—we are seeing that—and from the private sector as it performs public functions. 

Yasmin Qureshi:  The Justice Committee, of which I am a member, looked into the Freedom of Information Act and how it has been operating since it was passed many years ago. We spoke to different groups of people,

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representatives of councils and local authorities, the Information Commissioner and pressure groups. Generally, the view was that the Freedom of Information Act has been a force for good. The thing that people mentioned time and again was the fact that it applies only to public authorities and has a narrow remit in private companies. A lot of concern was expressed about that. 

As my hon. Friend the Member for Barnsley Central said, just under £200 billion is being spent by the Government for private companies to carry out public work. The number of outsourcings could increase, especially in the criminal justice system. In the probation service there will be contracting out and privatisation, as well as changes in the criminal justice system in relation to legal aid and suchlike. We have concerns about the criminal justice system and the number of companies that will be carrying out work that the state normally does. It is an important issue. 

Will the Minister give us an undertaking for whenever Government money is given to carry out work on behalf of the Government? Local authorities and Government Departments have to provide information, and it should be the same for private companies. At the moment, as the shadow Minister mentioned, the agencies providing some of the public work give some information, but it is not enough. 

It is often hard to get information from private companies. It is important for the country that we know where public money is being spent and how private companies respond to such things. We can have party political banter, but freedom of information was introduced many years ago and has been working well. Freedom of information needs to be extended in light of the new circumstances. I ask for a clear commitment from the Government that they will encapsulate that in the Bill. They now have that opportunity; the Labour party has said that, if it was in government, it would certainly do so. The lacunae and the gaps would be addressed by the amendment, which would make it clear exactly how the regime applies. [Interruption.]  

10.30 am 

The Chair:  I apologise for the background noise. We are looking into the cause. 

Jeremy Wright:  Thank you, Mr Crausby. I hope Jajo the rabbit is not responsible. 

As the hon. Member for Barnsley Central said, amendment 37 seeks to introduce a requirement as to the contents of the code of practice that the Secretary of State will issue under proposed new section 62B of the Criminal Justice and Court Services Act 2000, which is to be introduced through clause 6. The Secretary of State would have to include provisions in the code of practice requiring 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. The aim of the amendment seems essentially to extend the Act to providers of electronic monitoring not already subject to its provisions. 

Amendment 38 has the same basic intention in that it seeks to extend the Freedom of Information Act to providers of secure colleges that have entered a contract with the Secretary of State to do so under schedule 4. The approach differs, however, because amendment 38

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would extend the Act directly, whereas amendment 37 seeks to extend its obligations through code of practice guidance. 

In other words, both amendments 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. Section 5 of the Act already provides a power to extend the Act’s provisions to contractors providing public services. For reasons I will try to outline, the Government do not currently propose to adopt that approach and are adopting an alternative method to ensure transparency. I am aware, however, of the long-standing and serious concerns raised on the position under the Act of private providers of public services. It might help the hon. Member for Hammersmith to know that the Government are committed to, and have taken steps to extend, the Act. More than 100 additional organisations have been included since 2010, and we are considering other ways in which its scope may be widened. 

The issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act by the Select Committee on Justice in 2012. I do not know whether the hon. Member for Bolton South East was a member of the Committee of that time, but the Committee rightly issued a reminder that 

“the right to access information is crucial to ensuring accountability and transparency for the spending of taxpayers’ money”. 

The Committee recommended the use of contractual provisions, rather than the formal extension of the Act, to ensure that transparency and accountability are maintained. In particular, the Committee said: 

“We believe 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 feels that 

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

The Government’s approach is consistent with that recommended by the Justice Committee. 

In addition to information being made available proactively, the Government are taking steps to issue a revised code of practice under section 45 of the Freedom of Information Act to promote transparency on outsourced public services in response to FOI requests. The code of practice will be issued later this year and will promote and encourage the use and enforcement of contractual obligations to ensure that private bodies not subject to the Act provide appropriate assistance where information about outsourced public services is requested from bodies that are subject to the Act. 

The Government recognise that only a small amount of information held by private providers is currently often formally subject to the Act. Our code of practice will encourage public authorities to go further, to interpret their freedom of information obligation broadly and to release more information on a voluntary basis, where it would be in the public interest to do so. In the event of non-compliance, it will also be possible for the Information Commissioner to issue and publish a practice recommendation setting out steps that, in his view, the public authority should take to promote conformity with the guidance. 

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Mr Slaughter:  I seem to remember taking part in the Westminster Hall debate arising out of the Justice Committee’s deliberation and I do not think that it was very happy with the approach that the Government are taking, particularly where they are seeking to restrict freedom of information further. Does the hon. Gentleman accept on the basis of what he has just said that this will not be a level playing field and that the same requirements that apply to public bodies will not apply to private organisations undertaking an effectively identical role? Does he accept that, whatever the merits of his scheme, it does not to far enough and does not address the comments of my hon. Friend the Member for Barnsley Central? 

Jeremy Wright:  The hon. Gentleman will recognise that the organisations we are talking about extending the provisions of the Act to cover vary hugely in size and level of resources. The concern is to draw the appropriate balance between giving correct access to information and not imposing intolerable burdens on organisations, particularly smaller ones. That is the balance that has to be struck. We are looking at ways in which we can continue to make public authorities responsible for supplying information but ensure that it comes from the place where it originated, which may be those other organisations. 

Mr Slaughter:  That is a different argument and one that is often tried. It was tried in relation to universities and to the smaller district councils much beloved of the hon. Member for Bromley and Chislehurst. There are already limitations within the Act. There are safeguards for organisations in terms of the amount of time and cost. Why are they not sufficient? 

Jeremy Wright:  As I said, there is a balance to be struck. We attempt to strike that balance correctly with our proposals. If I can explain what we want to do a little more fully, perhaps the hon. Gentleman will be reassured—although frankly I doubt it. There is an opportunity for us to look at the issue in a sensible way with the code of practice. Applying our forthcoming code of practice guidance across the public sector will ensure that transparency and response to freedom of information requests will be maintained in a consistent way. This is preferable—I agree with my hon. Friend the Member for Cambridge—to the more piecemeal approach promoted by amendments 37 and 38. 

The success of our own code of practice will be monitored by the Ministry of Justice and the Information Commissioner. We were clear in our response to post-legislative scrutiny of the Freedom of Information Act that, should this approach yield insufficient dividends, we will consider what other steps are necessary. In summary, we are committed to ensuring transparency in relation to all outsourced public services, including electronic monitoring and secure colleges. We are taking steps to ensure that through the code of practice to be issued later this year. On that basis, I invite the hon. Gentleman to withdraw his amendment. 

Yasmin Qureshi:  The Minister referred to the Select Committee on Justice and its recommendations. As you know, without going into the detail of that discussion, Select Committee recommendations sometimes tend to

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be compromises. At the time, three issues were in the mind of the Select Committee. First, it did not realise that a legislative opportunity would come so soon in which to put the measure in a more codified way with a clearer legal obligation. Secondly, there was quite a lot of discussion about private companies. 

The Select Committee accepted that the Freedom of Information Act should not apply to purely private companies carrying out purely private work; it was not really arguing against that. However, here we have an opportunity to codify once and for all in legislation the provision that the FOIA should apply whenever public money is paid to a private company to carry out work. That would be a fairly straightforward provision. I do not see why we need to go down the complicated route of using a code of practice, putting in a specific provision in a new contract each time something happens. Why can we not just have a general provision that applies to every situation? 

Jeremy Wright:  I was a member of the Justice Committee before the hon. Lady was, so I understand her point that recommendations of the Select Committee are a matter of discussion and compromise. However, they are made on a cross-party basis, and paid all the more attention to for that reason. I quoted directly from the Select Committee’s conclusions in what I said earlier. 

On the hon. Lady’s other point, this may be an earlier legislative opportunity than the Select Committee anticipated, but of course, it is only an opportunity in relation to specific policies. Again, I rather agree with the point made earlier by my hon. Friend the Member for Cambridge: there is an argument for addressing the issue, not on a piecemeal basis, but more comprehensively. 

The hon. Lady’s final point is that the approach that we have set out—using a code of practice—is inadequate and that a statutory approach should be introduced by amending primary legislation. An initial approach of using a code of practice is a sensible one. She will recognise that amendment 37, tabled by the hon. Member for Barnsley Central, deals with a requirement in a code of practice, not primary legislation. Amendment 38 is different, but in relation to electronic monitoring, on which a number of concerns have been expressed, the hon. Gentleman’s chosen vehicle is a code of practice. The code of practice approach appears to be welcomed by both sides of the Committee. 

Dan Jarvis:  I have listened carefully to the Minister’s response. Clearly, we will want to look carefully at the detail of what he has said about a code of practice. 

I agree with my hon. Friend the Member for Bolton South-East that the Committee has an opportunity this morning to make progress on redefining the freedom of information. I have heard the Minister’s response to that point, but the reality is that the move would be popular with the public. 

There is no doubt that the landscape in which public services are delivered is changing. The Opposition have pledged to reform freedom of information if we are in government from 2015. I am mindful of the Prime Minister’s comments, which I quoted earlier. He said: 

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“Information is power. It lets people hold the powerful to account”, 

and it should be used by them to hold their public services to account. 

Mike Kane:  Does my hon. Friend agree that, as the contracting out of public services expands, the public’s right to information shrinks? 

Dan Jarvis:  I agree absolutely. There is a degree of inevitability that we will see change in the area. The debate is about how we do it, and it is important that we have that debate. We have tabled the amendments partly so that we can take the opportunity to debate such issues. 

Mr Slaughter:  There is another point here, which is that the Ministry of Justice is particularly vulnerable on the issue. We have had the privatisation of the probation service and the scandals regarding tagging. We will come to later in the Bill to proposals about the externalisation of the collection of fines and other matters. First, that is going on wholesale in the Department, and secondly, it is defective in many aspects. It is particularly relevant that the Minister should accept that the proposals in the Bill are not sufficient. 

Dan Jarvis:  My hon. Friend is right. In the context of the delivery of public services within the Ministry of Justice remit, this is a particularly relevant, timely and important issue. It has been incredibly useful to have the opportunity to debate it owing to the tabling of the amendments. 

10.45 am 

I mentioned that I was mindful of the Prime Minister’s comments, and I am mindful of the fact that the Justice Secretary has also indicated a desire to reform freedom of information. Given that there is a general acknowledgment that the status quo is not acceptable and despite what the Minister has said in response to our amendment, I will press it to a vote. 

Question put, That the amendment be made. 

The Committee divided: Ayes 6, Noes 10. 

Division No. 1 ]  


Champion, Sarah   

Jarvis, Dan   

Kane, Mike   

Qureshi, Yasmin   

Slaughter, Mr Andy   

Vaz, Valerie   


Bray, Angie   

Buckland, Mr Robert   

Evennett, Mr David   

Huppert, Dr Julian   

Metcalfe, Stephen   

Neill, Robert   

Opperman, Guy   

Scott, Mr Lee   

Vara, Mr Shailesh   

Wright, Jeremy   

Question accordingly negatived.  

Clause 6 ordered to stand part of the Bill.  

Schedule 2 agreed to.  

Clauses 7 to 9 ordered to stand part of the Bill.  

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Clause 10 

Offence of remaining unlawfully at large after recall 

Dan Jarvis:  I beg to move amendment 13, in clause 10, page 10, line 29, after ‘fails’, insert ‘deliberately and’. 

The amendment, which stands in my name and that of my hon. Friend the Member for Hammersmith, is a minor amendment that would make a significant difference to the most vulnerable offenders in the criminal justice system. The Committee will be aware that clause 10 introduces a new statutory offence of remaining unlawfully at large after recall to custody. Those found guilty will be sentenced to a fine and/or a period in custody of up to one year or two years, depending on whether the offender is tried in a Crown court or a magistrates court. 

I am sure that most people would accept that, where someone knowingly ignores calls and letters informing them that they need to report to custody and deliberately does all they can to evade the authorities, that should carry some penalty. However, the amendment is intended to introduce appropriate safeguards for those who may fall victim to this offence through quite different circumstances. It would allow a distinction to be made between people who wilfully abscond following a recall and those who may not understand or be aware that they are required to return to custody. That is particularly relevant to offenders suffering from mental health issues, learning difficulties or other, social problems, such as homelessness. The Committee will be aware of how prevalent people afflicted by those issues are in the criminal justice system. 

Sarah Champion:  May I add one more group? By far the biggest group to suffer benefit sanctions is young people, because they simply do not understand the paperwork and the terms put in front of them. I am nervous that young people, too, might naively fall into this offence; the word “deliberately” is a very strong one to include. 

Dan Jarvis:  My hon. Friend is right: young people form another category of people who could be affected by the amendment. 

As I was saying, the Committee will be aware of how prevalent people afflicted by the issues mentioned are in the criminal justice system. Most of us would also accept that provision for that group is somewhat patchy and people are often let down by a failure to recognise and meet their needs. For instance, the Committee may be aware of the report published in January by the Care Quality Commission, in conjunction with the inspectorate of probation, the inspectorate of constabulary and the Crown Prosecution Service inspectorate. Their inspections found that offenders with learning disabilities are not getting the support they need from police, probation and prosecution services. They estimated that as many as 30% of those going through the criminal justice system have learning disabilities of one form or another. 

Without additional safeguards, there is a danger that this new offence could lead to people being imprisoned for a considerable period owing to a technical breach of

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licence conditions. That applies particularly to those with learning disabilities, who may not fully understand what is expected of them. 

Sarah Champion:  We all know that about 60% of the prison population have learning difficulties to some degree. It is a shocking figure and I would rather the issue had been sorted out in Sure Start units and in schools, but unfortunately this is the position we are in, so the problem my hon. Friend is referring to could be enormous if we do not put proper safeguards in place. 

Dan Jarvis:  Again, my hon. Friend is right to make that point. A significant and worrying proportion of people in custody have learning disabilities. Let me give a practical example. A significant and worrying proportion of people with learning disabilities have problems with telling the time. That can lead to their missing appointments and being recalled for technical breach of their licence conditions. I know that the Minister and the Government will be conscious of that. This matter has been raised, and officials at the Minister’s Department have stated that they believe guidance to be the appropriate mechanism for setting out this distinction. There remains a concern, however, that that will still not provide adequate protection to ensure against inappropriate prosecution. Making the distinction in legislation of deliberate intent—or the lack of it—would help to ensure that people are not prosecuted inappropriately. Vulnerable people caught up in the justice system often need greater support to meet the conditions of licence requirements. None of us wants vulnerable defendants to be set up to fail. 

Sarah Champion:  My hon. Friend will agree that, although it is right that people who deliberately breach their terms should be caught by this legislation, it is vulnerable people whom we are particularly concerned about. I cannot see how including the word “deliberately” detracts at all from the Bill. It would tighten it up, so that vulnerable people who inadvertently got caught were protected. 

Dan Jarvis:  My hon. Friend is absolutely right. As I have made clear, when people deliberately seek to evade, it is absolutely right and appropriate that there be consequences, but this tiny amendment is designed to provide an additional safeguard to support those who do not. As my hon. Friend said, that includes young people, and it includes people with learning disabilities and with mental health issues. The amendment is designed to be helpful and constructive. I hope the Committee will give it good consideration so that, working together constructively, we can put the appropriate safeguards in place to protect those who are vulnerable in this regard. 

Mr Buckland:  I will be brief. I am interested in the hon. Gentleman’s point about reasonable excuse. I am trying to remind myself of the provisions of the Bail Act 1976. Perhaps those who advise my hon. Friend the Minister can assist here. As I recall, if a person fails to surrender to bail without reasonable excuse, he or she might be guilty of an offence. That phrase “reasonable excuse” gives the court a wide discretion to consider on the basis of evidence whether the failure to surrender to

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bail was not that person’s fault or there is another explanation. So a discretion is firmly built into the court process to allow for those decisions to be made. Similar provisions apply to breaches of court orders. The court will have a discretion to consider on evidence whether a reasonable excuse has been established or whether it is satisfied that there is no reasonable excuse, to put it on its proper basis, because the criminal standard of proof has to apply. The court has to exclude the possibility that a defendant has a reasonable excuse. 

As I read the provisions in clause 10, I do not see any difference between them and those we are familiar with in the other examples I have outlined. Although I understand and entirely support the concerns of the hon. Member for Barnsley Central about people with learning difficulties and other needs who often find understanding the provisions not the easiest thing in the world, I am not sure whether the word “deliberately” adds anything in true measure to the court’s discretion in these circumstances. It is important to have a debate about these issues, but I remain to be convinced that that amendment is necessary. I would welcome observations from my hon. Friend the Minister about the extent of the court’s discretion and the burden and standard of proof that it will apply when determining issues relating to this offence, either by way of trial or other process. 

Yasmin Qureshi:  May I pick up on what the hon. Member for South Swindon just said? He explained that if someone fails to attend their bail hearing, the court will look at the reason and if there is a justifiable explanation then they will be found not to be in breach of their bail condition. We are still not clear that that is so in these cases, so we need further clarification from the Minister. The Prison Reform Trust said that there should be a distinction between offenders who wilfully evade or abscond and those who have a reason for not being there, such as not being aware of all the different conditions. It is hard to know whether that is allowed. 

It is not within the remit of the amendment, but we are talking about clauses 10 and 11 so it seems appropriate to ask whether it is necessary to increase the sentence of six months to two years. That seems excessive. We already have a large prison population in overcrowded prisons. I know some people think prison is the panacea for all criminal offences—just bang people up and give them long custodial sentences—but that is not what happens. People may be put away for two years, but we should know whether there are any mitigating circumstances and have an idea of why the situation occurred. These provisions appear to be a case of using a sledgehammer to crack a nut. 

Dr Huppert:  I listened carefully to what the hon. Lady said about the criminal sanctions. It is good to find that there are some more liberally minded people around who think that longer jail sentences do not always work. I bring her back to the issue of reasonable excuse. As my hon. Friend the Member for South Swindon said, section 6 of the Bail Act 1976 states: 

“If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence.” 

Why should there be a different test for recall and bail? It would seem sensible to have the same test for both. 

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11 am 

Yasmin Qureshi:  That is what I am saying. For someone who did not deliberately evade recall but did not return for whatever reason, the provision in the Bail Act should apply. We are asking for clarification on whether, for those who are out on licence and do not bother to turn up or something like that, that is it, or whether the explanation given is important. There should be clarity about whether the person is given an opportunity to say what happened to them, as opposed to being found guilty just because they were regarded as being at large. I am not asking for any specific changes, just that that element should be allowed. Secondly, I ask the Minister to reconsider the penalty jumping from six months to two years, as that seems a bit excessive. 

Jeremy Wright:  To pick up on the hon. Lady’s final point, she will recognise that that change is made by clause 11. I am sure that you would not want me to talk, Mr Crausby, in the context of the amendment, about information covered by that clause. 

The amendment seeks to ensure that only those who deliberately remain unlawfully at large and fail to return to custody are caught by the offence. I understand the aim set out by the hon. Member for Barnsley Central and I am grateful to him for the way in which he put it. I accept entirely that he seeks to be constructive and to improve the offence. I understand that he also seeks to avoid a situation in which the offence penalises those offenders who remain unlawfully at large through no fault of their own. I assure him that there are already sufficient safeguards in the clause to ensure that the new offence will catch only those who deliberately and wilfully seek to avoid serving the rest of their sentence, having been recalled for breaching their licence conditions. Therefore, the amendment is unnecessary. 

For someone to be guilty of the offence, they have to have been notified of the recall. Therefore, if they had not been notified of recall at all, they would not be guilty. The vast majority of recalled offenders are returned to custody within a few days. Some are unaware that their licence has been revoked until they are arrested and, in those cases, the offence will not apply. 

For a recall to take place at all, probation officers will need to have reached a view that it is appropriate in that case. The first decision taken before this offence could have any purchase on an offender would be that recall is appropriate in that case. Of course, if someone had very good reason for failing to comply with their licence conditions, those probation officers may well consider recall not to be appropriate in the first place. The provision we are discussing, however, is carefully framed so that an offender 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 if they can be treated as notified of the recall in light of repeated failures to keep in touch with probation as required. 

Sarah Champion:  How does that work if the person is homeless? 

Jeremy Wright:  That must be considered when deciding whether someone has been properly notified. If someone is registered as homeless, they are obliged as part of their licence conditions to give an address to which post

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can be delivered so that they can be contacted. As the hon. Lady will recognise, it is important that someone on licence is in touch with their probation officer, so there must be a mechanism by which that can take place. Of course, the fundamental point here is that if there is a failure to comply with licence conditions, or in this case to return following a recall, if the offender fails without reasonable excuse to take all the necessary steps to return to custody, they may be guilty of this offence. 

Mr Buckland  rose—  

Jeremy Wright:  My hon. Friend is about to intervene. I may be able to preclude his intervention by saying that he is entirely right that we are setting out a criminal offence in relation to this matter. Therefore, the criminal standard of proof applies, and the burden of proof remains on the prosecution to demonstrate the elements of the offence, as he would expect. I will happily give way to him. 

Mr Buckland:  I am very grateful for that clarification. Having looked again at schedule 8 of the Criminal Justice Act 2003, which is sometimes referred to as the Blunkett Act, the phrase “reasonable excuse” is used when setting out the parameters within which a breach of a community order is to be established, so there is a clear thread here. The language is consistent and allows for the widest discretion. 

Jeremy Wright:  Yes, as my hon. Friend says, the court would have to be persuaded in each case brought before it under this new provision that there was no reasonable excuse. If they find that there was a reasonable excuse, of course the individual would not be guilty of this offence, but that would be a matter for the court in each case. 

I understand entirely why the hon. Member for Barnsley Central rightly raised particular concerns around young people and those with learning disabilities. It is important that licence conditions are explained in clear language when they are first imposed, so that everyone understands what they are expected to do. As the hon. Gentleman may know, we are already committed to making sure that there is an easy read version of licence conditions so that particularly those with learning disabilities have an opportunity to understand what is required of them. 

Again, if it were apparent to the court that licence conditions were not properly explained, that may be considered a reasonable excuse, but it will be a matter for the court to decide on the facts of each case. I can say to the Committee that this offence is not about locking up as many people as possible or prosecuting them unnecessarily. It is about ensuring that, in the most serious cases, where an offender has been recalled from licence and run off to avoid serving their sentence, the courts have the necessary powers to deal with them. For the reasons I have set out, I do not believe that the amendment that the hon. Member for Barnsley Central tabled is necessary, although I entirely understand why he has sparked the debate. 

Dr Huppert:  Before the Minister sits down, perhaps I could return to the point that was made by the hon. Member for Bolton South East. It applies to clause 10(5)

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as well as clause 11, as it is the same issue. Having checked the Bail Act 1976, as I understand it, the sentence for skipping bail, with all the reasonable excuse arguments, is three months from a magistrates court or 12 months from a Crown court. Can he explain why this is more serious? It seems to me that in both cases there are essentially the same effects of refusing to show up when you are required to do so. 

Jeremy Wright:  There is a material difference. We are talking here about those who are subject to a prison sentence, who are released from the custodial part of that sentence but still subject to the remainder of that sentence, who choose not to comply with an order for their recall to custody. Those cases can be extremely serious. If someone is towards the latter part of their sentence, under the law as it stands, all we can oblige them to do after eventually effecting their recall is ask them to serve the remainder of the sentence that they had already received. We think it is important that a substantial penalty is available for the courts to use in appropriate cases. This is again a maximum sentence, and it does not mean that the court will impose two years in every case. However, we think it is appropriate for there to be a significant penalty available for those who effectively cock a snook at the law and decide not to return when they are obliged to do so as a subject of recall. 

Dan Jarvis:  This has been a useful debate, and I am grateful for reassurances from the Minister. Clearly, there is concern about this issue. I am sure that we will return to it in due course but, for now, given the Minister’s assurances, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 1 0 ordered to stand part of the Bill .  

Clause s 11 to 13 ordered to stand part of the Bill.  

Clause 14 

Restrictions on use of cautions 

Question proposed, That the clause stand part of the Bill. 

Dan Jarvis:  I will speak to clause 14, but first, if I may, I will say a little about the preceding clauses in the group. Clause 11 increases the maximum sentence for the existing offence of remaining unlawfully at large after temporary release. The Committee has already debated the introduction of a new offence of remaining unlawfully at large after recall under clause 10. It therefore makes sense to bring the penalties for that offence into line with those for the existing offence of remaining unlawfully at large after temporary release. Clauses 12 and 13— 

The Chair:  Order. You can speak only to clause 14 at this point, Mr Jarvis. 

Dan Jarvis:  I will turn to clause 14, Mr Crausby. It is a reform that we wholeheartedly welcome. I congratulate the Minister and the Government. We have been calling for this proposal for several years. 

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Cautions and out-of-court disposals are an important tool in dealing with low-level offending. When used in the right way, they can successfully deter people from progressing further up the criminal ladder, help free up valuable court time and enable a more localised approach to law and order. However, there will be agreement across the Committee that our criminal justice system is substantially cheapened when cautions are handed out for serious violent and sexual offences. It erodes confidence and public trust, makes victims feel that the system is against them rather than on their side and can lead to people questioning whether it is worth coming forward to report crimes at all. 

Innocent victims want to know that those guilty of serious crimes will be given the appropriate punishment. However, according to figures from the Ministry of Justice, nearly 1,200 simple cautions were issued for domestic violence in 2012-13. Over the same period, there were 552 cautions for sexual assault against men and women, as well as 16 cautions for rape. That is wrong and should not be happening. That is why in January last year my right hon. Friend the shadow Home Secretary called for police cautions no longer to be used for serious offences. 

According to figures published by the Magistrates’ Association, one in four violent offenders, one in five sex offenders and one in 20 offenders with more than 10 previous convictions have all escaped with only a caution from police. The chairman of the Magistrates’ Association described use of cautions as having “got out of hand” in a letter to the Justice Secretary last year. I am glad that the Secretary of State has listened to him and the many others who have long been calling for action on this issue. The Opposition would have preferred action sooner, and many victims will feel that offenders have been let off lightly during the time it has taken to bring the measures forward, but the proposals are still welcome. 

I want to make four specific points to the Minister and the Committee. The first relates to subsection (5) of the clause, which says that police officers may not issue cautions if they are below a certain rank, to be specified in an order made by the Secretary of State. Will the Minister tell us when we can expect that order and whether he has given any consideration to further specifying that rank in the Bill to ensure an appropriate level of seniority? The Magistrates’ Association has proposed amending the subsection to replace “senior police officer” with “senior police officer, of at least rank of inspector.” Does the Minister think there is any merit in that proposal? 

Secondly, the Committee will remember what Richard Monkhouse, the chair of the Magistrates’ Association, told us in evidence last week. On cautions, he said that 

“with 43 chief constables, there were 43 ways of handling it. That is why in one area you can get 73% of people being given a simple caution or being dealt with out of court, and in another area 30% of people are dealt with out of court. All of that needs standardising”.––[Official Report, Criminal Justice and Courts Public Bill Committee, 11 March 2014; c. 27, Q57.] 

Guy Opperman:  Earlier, the hon. Gentleman supported my point that localisation is a good thing, but he now seems to be saying that it is not a good thing. Will he clarify his position? 

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11.15 am 

Dan Jarvis:  I am happy to clarify that we seek to raise what I hope the Committee will consider to be reasonable and constructive points of debate for the Minister to respond to. Most people will agree that that is useful. I am sure the Minister will be able to deal comprehensively with my questions. 

Guy Opperman:  No disrespect, but the hon. Gentleman has not answered my question. Is there scope for individual police forces and police and crime commissioners that know their area’s problems—whether Manchester or Northumbria—to have greater control over their area, or is localisation a bad thing? The hon. Gentleman was clear in his opening remarks that he supports localisation. 

Dan Jarvis:  I am genuinely grateful to the hon. Gentleman for his intervention. There is scope for localisation, but the debate is about where the balance should be struck. It is important that we use the opportunity to debate the issue in Committee. It is constructive and useful to ask the Minister where he thinks the balance should be struck in the Bill, and that is what I seek to do. 

Sarah Champion:  I have been doing a lot of work on abduction notices, which are cautions, and one of the biggest problems is that forces implement them subjectively. Often, guidance that is given to police forces is not implemented, so different police officers have a different understanding of when they are or are not appropriate. Some crimes happen in several regions and some criminals develop a sophisticated understanding of different police forces’ tolerances. Therefore, it would be extremely helpful to have guidance on this matter. 

The other problem, to which my hon. Friend alluded, is that the victims’ faith in the police is undermined when serious offenders receive caution after caution. Anything the clause can do to strengthen cautions and clarify their use is welcome. 

Dan Jarvis:  My hon. Friend makes a useful and interesting point. It is useful for us to debate these issues, and I look forward to hearing what the Minister has to say about my hon. Friend’s point and my questions. 

There are already stringent rules about when it is acceptable to caution violent sexual offenders. Only a police officer of a certain rank can do it, and they have to consult the CPS to ensure that it is the right thing to do. The problem is that there is scant evidence to show that that is actually happening. For example, my hon. Friend the shadow Attorney-General recently sent freedom of information requests to police forces asking how often they had sought CPS approval for cautions issued for penetrative sexual assault on women. Their responses showed that only three of the 16 cautions issued for rape were referred to the CPS. It would therefore be helpful if the Minister told the Committee what steps the Government will take to ensure that subsection (2) works in reality. 

Thirdly, may I probe the rationale for the two-year time period in subsection (4), which specifies that a caution may not be issued to a person convicted or cautioned within the previous two years? Most people would agree that it is not appropriate to keep issuing cautions to people who reoffend time and again. However,

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some people have questioned whether a two-year time period is enough. The Magistrates’ Association suggested that a period of three to five years might be more appropriate to capture all cases, not only summary offences. 

I note that although the Bill proposes a two-year time period in subsection (4)(b), it will give the Secretary of State the power to alter the time period under subsection (7). That suggests a degree of uncertainty about whether two years is an appropriate time period. Therefore, will the Minister explain the Government’s rationale for setting the time period at two years? Will he consider extending it? 

Fourthly and finally, we should remember that a simple caution is just one form of out-of-court disposal. Police powers to issue conditional cautions without making reference to the CPS are being expanded. How do the Government plan to ensure that the same problems that beset the use of simple cautions do not apply to those as well? That concludes the key issues that I wanted to raise. 

Let me finish by repeating that we are in agreement on the importance of stopping cautions being issued for serious, violent, sexual and repeat offences. I would be grateful to the Minister for assurances on those points, and I hope that that will allow us to support clause 14 and the other clauses in the group to stand part of the Bill. 

Yasmin Qureshi:  Cautions and their use have exercised lawyers, judges, prosecutors and everybody else for a number of years. There has always been an issue about cautions being given in some parts of the country for specific types of offence, whereas, for the same offences in other parts of the country, they are not. There has always been an argument and a big debate about whether that is right or wrong. Some parts of the country may have a particularly prevalent problem such as knife crime. I remember that years ago, in some areas, people would be cautioned for possessing offensive weapons because there was not a problem in that part of the country, but where there was a problem, they would be prosecuted. That same argument could continue to be had about who should be given cautions, or whether the police should be the sole arbiters of deciding who cautions should be given to. 

As I understand the current rules, the police decide whether somebody should be given a caution and cautions are normally delivered by an inspector-ranking police officer. Sometimes, a case proceeds to a charge; sometimes, the prosecution may ask for a caution as a way to dispose of the case. Therefore, it is right to take a proper look at how cautions are being used and what is happening. 

I have a general issue to raise. There is rightly concern that cautions have been issued in some cases where the allegations are serious. However, I would urge a cautionary note from my own practical experience many years ago, and I will give the circumstances of a case. 

A young boy, about 14, was in a care home, and he set fire to the curtains and then tried to put the smoke out. It was considered whether he should be charged with the offence of arson, which, as everyone here would recognise, is a very serious offence. Therefore, should a caution have been considered? However, we then found out about his life. On the occasion that he had done this,

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he had apparently been in court to give evidence against his mother’s boyfriend, who had raped his young sister. He had arrived at court to give evidence—his young sister, who had been raped, was about seven or eight—and the first thing his mother did, when she saw him, was give him a big punch in his stomach. As a result, he was incredibly upset and when he got back to the care home, that is when the idea occurred to him. He then tried to put the fire out as well and, fortunately, no damage occurred. If we go by those things, would a caution with him be an option? 

Mr Slaughter:  My hon. Friend is making a persuasive argument, but there is another point to be considered. When a caution is given, often the surrounding circumstances are not known, and therefore, it appears

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to be an inappropriate punishment. There is, as I think the Magistrates’ Association would agree, some virtue in offences, particularly serious offences, coming before a tribunal, so that the tribunal could not only use its discretion, but show to the public that justice is being done. 

Yasmin Qureshi:  The case that I described is not unusual. A number of cases could fall into that category, so instead of a blanket ban, saying, “On the face of it, the facts appear such that a caution should not be considered,” perhaps what could be done is— 

11.25 am 

The Chair adjourned the Committee without Question put (Standing Order No. 88).  

Adjourned till this day at Two o’clock.  

Prepared 19th March 2014