Offender Rehabilitation Bill [Lords]
The Committee consisted of the following Members:
David Slater, Kate Emms, Committee Clerks
† attended the Committee
‘(7A) The Secretary of State must prescribe minimum training requirements to be completed by the supervisor, in regulations to be laid before, and approved by resolution of, both Houses of Parliament.’.—(Mr Slaughter.)
The Parliamentary Under-Secretary of State for Justice (Jeremy Wright): It is good to see you back in the Chair this afternoon, Ms Dorries. We were discussing amendment 4, which raises the important issue of training, as the hon. Member for Hammersmith outlined. It is very similar to amendment 5 to be considered in a later group.
Amendment 4 would require the Secretary of State to set out, in regulations approved by both Houses of Parliament, the minimum training requirements for members of staff responsible for managing the period of top-up supervision. The amendment raises two points: one, that the Secretary of State should set out minimum training requirements; and, two, that those should be subject to parliamentary scrutiny.
The first point, as I attempted to say earlier when intervening on the hon. Gentleman, is covered by section 10 of the Offender Management Act 2007, which provides that the Secretary of State may publish guidelines about any qualifications, experience or training required to perform the work of an officer of a provider of probation services. It also requires that he must publish guidelines about qualifications, experience or training in relation to work involving the supervision of offenders and other work requiring direct contact with offenders, including those held in custody.
In the context of the Bill, the supervisor and responsible officer roles both clearly fall into the category of work involving the supervision of offenders and, therefore, the underlying principle of the amendment falls within the Secretary of State’s existing statutory duty to publish guidelines about any required qualifications, experience or training for the roles.
On the second point, that minimum requirements ought to be subject to parliamentary scrutiny, I would point out that when Parliament placed the existing requirements on the Secretary of State, in section 10 of the 2007 Act, to publish guidelines, it did not stipulate that those guidelines should be subject to parliamentary approval. The Government believe that the approach in the 2007 Act was the right one.
The training and experience of staff is and should remain an operational matter that we would not normally expect to be subject to detailed parliamentary scrutiny. Specifying minimum training requirements in regulations would introduce unnecessary bureaucracy and would create an inflexible system in which regulations would need frequent revisions to reflect developments in training and qualifications.
However, I can assure the Committee and the hon. Member for Hammersmith in particular, that community rehabilitation companies will not be free to use inexperienced or unsuitable staff to manage offenders. CRCs will be contractually required to have and maintain a suitably trained and competent work force. Potential providers will be asked to demonstrate in their bids how they will ensure staff are competent to carry out the work and manage the level of risk posed by offenders.
We will ask providers to demonstrate that all staff employed to supervise offenders, and conduct work requiring direct contact with offenders, are competent within the core skills that underpin the national occupational standards for probation. For those staff authorised as officers of providers of probation services who will have the statutory responsibility for managing the delivery of the sentence of the court, and for managing the risk of serious harm, we would expect those skills to be evidenced at an appropriately high level, for example through an accredited qualification or through a minimum number of years of relevant experience.
Supervisors of offenders subject to top-up supervision, and responsible officers in all cases except where a community sentence consists solely of an electronically monitored curfew requirement, must by law be authorised officers of a provider of probation services. As I have already said, the 2007 Act requires the Secretary of State to publish guidelines about any qualifications, experience or training required to perform the work of an officer of a provider of probation services, and in due course we will publish new guidelines. However, we are not reliant on those guidelines alone to set the minimum standard for CRCs and to provide the necessary safeguards. We will also do that through the bidding process and through contractual obligations.
Mr Andy Slaughter (Hammersmith) (Lab): It is a pleasure to have you back in the Chair this afternoon, Ms Dorries. I hear what the Minister says. I take his point on the inflexibility of using statutory regulations to control matters that are moveable feasts in terms of training and supervision.
As with many of our amendments, what this amendment is really hinting at is our concern at the lack of clarity on who the provider will be and under what conditions they would work; and if, as we suspect, they are going to be the usual suspects, whether they are competent persons to do that. I think we will return to that in the main group of amendments, both those in my name and that of my hon. Friend the Member for Darlington, and also those in the name of my right hon. Friend for Dwyfor Meirionnydd—amendments 20 and 22 deal with who the supervision should be carried out by. Perhaps that
(a) at the start of the supervision period the supervisor must record whether the offender is currently or has previously been looked after by a local authority.
(b) where the offender is an eligible child as defined in paragraph 19B(2) of Part II of Schedule 2 to the Children Act 1989, the supervisor must discharge the functions conferred on him by this Chapter in consultation with the local authority responsible for preparing a pathway plan for the offender.
(c) in this subsection “looked after by a local authority” shall have the same meaning as in section 22(1) of the Children Act 1989.’.
‘(7A) The supervisor must explain to the offender in language appropriate to his individual intellectual ability and understanding—
(a) the effect of the supervision requirements, and
(b) the effect of non-compliance with any requirement with which the offender is required to comply.’.
Mr Slaughter: This is a pretty straightforward issue. I think it is a clear issue and I hope it is one that will find some favour with the Minister. We touched just now on the need for supervisors to be equipped to deal with the variety of different circumstances that affect offenders. This amendment deals with the particular needs of care leavers and those with learning difficulties who have entered the criminal justice system. Amendment 49 is in my name and that of my hon. Friends the Members for Darlington and Kingston upon Hull East, and my right hon. Friend the Member for Wythenshawe and Sale East, who I am delighted to see has joined us here in Committee this afternoon. It provides that a supervisor must record if an offender under their care is currently or has previously been looked after by a local authority. It also provides that where a care leaver under supervision is entitled to leaving care services of a local authority, the supervision provider must cooperate with that local authority.
Children in care and care leavers account for less than 1% of the general population but are disproportionately represented in custody and the justice system more widely. Her Majesty’s inspectorate of prisons estimated last year that 30% of young men and 44% of young women in custody are looked-after children. Care leavers are also disproportionately likely to enter custody throughout their adult life. The Care Leavers’ Association estimate that over 25% of the adult prison population has previously been in care. We know that looked-after children and care leavers are a particularly vulnerable group for being drawn into the criminal justice system. They too often lack the support networks and stability that most of us are privy to. Despite the quite shocking estimates of numbers of looked-after children in custody, and the implication this has for corporate parenting, the criminal justice system still fails to carry out logical routine screening for looked-after status. Multi-agency
The issue of identification, particularly of care leavers as they enter the adult system, is key to the next issue of planning and support for this group. As my right hon. Friend the Member for Wythenshawe and Sale East said on Second Reading, we have a situation where young people in care may go into prison as a child and come out as an adult, a care leaver. Young people between 18 and 21 are entitled to leaving care services under the Children Act 1989, and the Children (Leaving Care) Act 2000. These include personal advisers and pathway plans from the local authority. Joined-up working is clearly necessary properly to bring together planning on leaving care pathway plans, sentence plans and resettlement arrangements.
Sarah Champion (Rotherham) (Lab): I support everything that my hon. Friend has said. Would he also agree that care leavers tend to have a much higher chance of being sexually abused and of being victims of other criminals? We should be looking at them as vulnerable adults, and I think this amendment is trying to recognise that so that they get the due support that they need.
Mr Slaughter: Yes. That picks up on the point I was making earlier, which is that the perpetrators, the offenders, are also victims in many of these cases. I think that a legion of recent cases has shown that to be the case. In the current system, when a youth offending team makes the decision to transfer a care leaver to a probation trust, it informs the trust of this status. Under transforming rehabilitation plans, many young care leavers will be transferred to new adult providers who are likely to be inexperienced and will not necessarily have the right knowledge of the system, or links with local government, to know what is required. The Government have recognised this risk themselves. To take account of the fact that a new range of providers will now find themselves responsible for this group, NOMS has published new guidance for those working with care leavers in the criminal justice system.
It is welcome that the guidance will be distributed and welcome also that the MOJ are reportedly to appoint a care leavers champion among its ranks. I wonder if the Minister would be happy to give the Committee more detail about how this champion will operate, whether they will be full-time or part-time and how much power they will have? While the guidance is a good step, the amendment would give statutory footing to the duty of new providers to co-operate with local authorities in planning for care leavers and ensuring they have access to the services they are entitled to.
The guidance encourages understanding, but does not instil this duty or guarantee compliance—particularly if it is not backed up by staff training and adequate resources. The amendment removes all doubt and gives
Amendment 50 repeats an issue that was raised in the other place. It provides that the supervisor must explain the supervision requirements and the consequences of breaching those requirements to each offender, in language appropriate to their ability and understanding. The amendment was first introduced in the other place by the noble Lord Bradley, who explained that its aim was to ensure that any offenders with learning disabilities or poor communication skills would be able fully to understand what is required of them. The Government will appreciate that the introduction of a licence and supervision period, complete with statutory requirements, does add extra complexity into a person's sentence. As Lord Bradley put it:
“To do otherwise will place the individual at risk of”—
Lord Ahmad committed the Government to providing updated guidance for staff on implementing licence conditions and supervision requirements, and issuing an easy-read version of supervision requirements. He also acknowledged the need for training to include the importance of clear and effective communication between staff and the offenders they manage. Would the Minister be happy to give an assurance of these same intentions to colleagues in this House on the plans to issue new guidance and an easy-read version of requirements; and will he please update the Committee on what training supervisors will be expected to take part in, and that this issue will be included?
Paul Goggins (Wythenshawe and Sale East) (Lab): It is the Minister’s job to get this Bill through the Committee and back to Report and Third Reading. However, there comes a point in considering any Bill where a point is made—sometimes by the Opposition or from Back Benchers on the Minister’s own side—which is sensible and capable of consensus across the Committee. I believe that amendment 49, in particular, ticks both those boxes. It is both sensible and should be a point of consensus. I will not repeat all the points that my hon. Friend made about how much more vulnerable children in care are, but the fact that we are talking about prisons and probation reminds us that they are much more likely to be in prison or subject to probation supervision than those in the community who have not been in care.
We should always remember that children in care are all our children. Whatever party we belong to and whatever responsibilities we have, we all have an obligation to them. I particularly want to place on record my appreciation for the work of the Under-Secretary of State
I say all that as a preamble to set the context that the issue is something on which there should be a consensus. On Second Reading I asked what would happen where a child goes into prison as a child in care and comes out as an adult? I am sure that the Minister will have some good answers for us on that. The amendment is the way through which we could absolutely copper-fasten the commitments and obligations that we all have to those children in care who go through the correctional system at the point when they make the transition from care into adult life.
Amendment 49 would make it crystal clear that, at the start of a supervision period, it is necessary to find out whether the child has been in care and to record that. There would then be an obligation to work in partnership and consultation with the local authority. That is not an exercise in bureaucracy. The local authority has abiding obligations and legal responsibilities regarding children in care that it must discharge way beyond the date at which a child leaves care and enters their adult life.
The amendment could be a good way for the Minister and the Bill to make it absolutely clear what the obligations are regarding children in care. I urge the Minister to reflect carefully on the issue, which I am sure he has been doing, and to give us a positive answer this afternoon.
Amendment 49 seeks to place a statutory duty on the person tasked with supervising an offender during the period of top-up supervision to record whether the offender is either currently or formerly a looked-after child. Where the offender falls into either category, the amendment seeks to place a requirement on the supervisor to liaise with the local authority that has continuing responsibility towards that offender.
I do not dispute in any way the points made by the hon. Member for Hammersmith and the right hon. Member for Wythenshawe and Sale East about the importance of the issue. I know that the Under-Secretary of State for Education, my hon. Friend the Member for Crewe and Nantwich (Mr Timpson), would be grateful for the words that the right hon. Gentleman spoke about him. I am sure that my hon. Friend would wish me to return the compliment and recognise that the right hon. Gentleman has also done a huge amount on the subject and has made a significant contribution to the debate over a long time. However, while I understand and sympathise with the objectives, I cannot accept the amendment for a series of practical reasons.
Regarding proposed new paragraph (a), I would agree entirely with the principle that records should be kept of offenders who were looked after and who will be entitled to continuing local authority support as care leavers. However, there are some issues with the terminology used in the amendment and its intended scope.
As the provisions relating to top-up supervision apply only to those aged 18 on release, such offenders would not, at the start of the supervision period, be looked-after children. The other cohort of people that the amendment is aimed at is former looked-after children for whom the local authority has continuing responsibilities once they have been released from custody.
As has been said, the local authority retains continuing responsibility for supporting some offenders aged 18-plus as care leavers. That group are referred to, in law, as former relevant children. The authority must allocate a personal adviser to maintain a plan and to stay in touch with them until age 21, or until they finish any programme of education or training.
Amendment 49 refers to previously looked-after children, which would extend, for example, to those who were adopted, or anyone who had been looked after during their infancy or childhood. The amendment would therefore draw in those for whom the local authority may not have had any contact and where engagement with the local authority would not be required.
I also question the need for proposed new paragraph (b) in amendment 49, which would place a statutory duty on supervisors and local authorities to co-operate. As both the hon. Member for Hammersmith and the right hon. Member for Wythenshawe and Sale East made clear, there is existing statutory guidance under the Children Act, which requires that, where a looked-after child or a care leaver is discharged form custody, their local authority social worker or leaving care personal adviser must work alongside the youth offending team or probation supervisor. That position will not change where the offender is subject to top-up supervision, and it will apply to whoever provides the supervision. Indeed, it will clearly be in their best interest to ensure that the local authority plays an active role—for instance, in supporting the offender with suitable accommodation—as this will directly aid the offender’s successful rehabilitation. A recent practice guidance, “Working with Care Leavers (18-25), in custody and the community, to reduce reoffending and promote effective transition to adulthood”, has just been issued and will be available to all supervisors of top-up supervision.
As I have already said, I appreciate what hon. and right hon. Members are trying to achieve through the amendment, but I consider it unnecessary. I would like to reassure the Committee that, through guidance and specific provision on IT systems, we will ensure that records are kept of those young offenders who are former looked-after children. The guidance will also reaffirm the existing statutory guidance to ensure providers work in co-operation with local authorities with the mutual aim of successful rehabilitation.
As the Committee will appreciate, the overarching aim of the Bill is to reduce reoffending, and I believe that collaborative work with local authorities for former looked-after children will be properly incentivised. I hope therefore that the hon. Member for Hammersmith is reassured by what I have said and will be prepared to withdraw the amendment.
Paul Goggins: I am grateful to the Minister for responding to the debate in exactly the right spirit. He has offered some reassurances, which I will reflect on. In the spirit of trying to get this absolutely right, and once we have all had time to reflect, would he be prepared to take further representations and consider whether other things could be added to make the obligations absolutely clear so that there is not duplication, but also so that there is not a situation in which a young person would be left without proper care and attention.
Jeremy Wright: Of course I will do that. As I said, there is a technical deficiency with the amendment, but I do not believe that we do not have adequate coverage of the points that we have discussed in the law as it stands. However, I am happy to reflect on any further submissions that the right hon. Gentleman or others wish to make if they, on reflection, believe that there are still gaps in what we currently have.
Amendment 50, as the hon. Member for Hammersmith has said, is identical to the amendment tabled by Lord Bradley in the other place at Committee stage. I entirely agree with the hon. Gentleman about the importance of explaining the new supervision
conditions to offenders in a way they can understand. That is why front-line staff have for a number of years been required through Prison Service and probation instructions to take into account issues such as learning disabilities when explaining the conditions of licence to offenders prior to release.
“When explaining licence conditions to offenders, staff must ensure that the offender understands any such conditions. This is particularly important with additional and bespoke conditions as they may contain complex or detailed requirements. In addition, staff must take into account any issues such as English as a second language, or learning disabilities that may prevent the offender from understanding completely what is required of them.”
Those instructions apply both to prison governors and to probation staff, whether employed by the probation service or other providers. When the supervision provisions of the Bill come into force, we will issue revised instructions covering both licence and supervision requirements. Those will be mandated for use by both the national probation service and by community rehabilitation companies. CRCs will be expected to comply with the instructions as part of their contracts.
My noble Friend Lord Ahmad made a commitment during the Lords Committee stage that the Ministry of Justice would develop and issue an easy-read version of the supervision conditions to complement the current version for licence conditions. I am happy to repeat that commitment for the record. I also repeat the commitment that we will revise both sets of instructions to include the new top-up supervision period, and explain the differences between this and the licence period.
In conclusion, I welcome the spirit of amendment 50. We need to ensure that offenders understand what is required of them, otherwise we will simply set them up to fail. I hope, therefore, that my explanation of the existing system of instructions and guidance for licence—giving discretion for when the explanation takes place, who gives it and how it is delivered—together with my assurances as how we will apply the same system to top-up supervision, reassures the hon. Gentleman and that he will be prepared to withdraw his amendment.
Mr Slaughter: I am grateful to the Minister and to my right hon. Friend the Member for Wythenshawe and Sale East. Given the spirit of the Minister’s comments and the letter of what he said, I will not press the amendments to a vote. The Minister shows an understanding of the real difficulty of comprehension, which is true for many people even in relatively straightforward matters in court proceedings, such as in pleas and in what is said. Certainly in the youth court and, to some extent, in the magistrates court, there is a greater awareness—I know that the Magistrates’ Association shares this view—that defendants must understand the proceedings.
These are complicated matters and the procedures are new to us. If they do not work for the benefit of those for whom they are intended, which is not just society and the victims, but the offenders, that will be a clear failure. In light of the Minister’s appreciation of that and the spirit in which he made his remarks, I beg to ask leave to withdraw the amendment.
(a) where the offender turns 18 on or before the last day of the requisite custodial period but is under the age of 21, the supervisor may be a member of a youth offending team established by the local authority in whose area the offender resides for the time being.
(b) the decision as to when to transfer responsibility for an offender from a member of a youth offending team to an officer of another provider of probation services must be taken by the relevant youth offending team, in consultation with the future provider of probation services.’.
‘(8A) Where the supervisor is an officer of a non-public sector provider of probation services the Secretary of State must—
(a) designate the provider as a “public authority”, as defined in section 3 of the Freedom of Information Act 2000;
(b) limit contractual arrangements with the provider for the provision of probation services to a maximum length of five years;
(c) prescribe key performance standards that the provider is required to meet in regulations to be laid before, and approved by resolution of, both Houses of Parliament;
(d) have the power to terminate the contractual arrangements at any time if the provider fails to meet the key performance standards;
(e) agree with the provider a percentage of the contract fee that must be returned to the Exchequer on the occasion that the provider fails to meet the key performance standards.’.
‘(8A) Supervisors may not be officers of any provider of probation services that is under investigation by a UK police force, the Serious Fraud Office or any other UK law enforcement agency.’.
‘(8A) Offenders released under this section shall be supervised by staff working for the National Probation Service or staff seconded from the National Probation Service to other providers of probation services.’.
Mr Slaughter: This is the main group of amendments today and I will therefore spend a bit of time on them. After that, I hope that we can motor a bit. The group deals with which providers should be permitted to provide supervision services and under what provisos. I tabled amendments 33, 34, 30 and 31, but amendments 20 and 22 were tabled by the right hon. Member for Dwyfor Meirionnydd and I do not have much to say on those.
There has been much debate on how little detail the Government felt it necessary to provide on some of their proposals. Amendment 33 goes some way to fleshing out what arrangements between the Secretary of State and a contracted provider should look like. It deals with the quality of contracts, accountability of providers and value for money for the taxpayer where services are contracted out. It would provide that contracts may be agreed with private sector providers only when the following conditions were met: all providers must be subject to the Freedom of Information Act; contracts must be limited to five years; key performance standards on which the provider will be tested must be laid out; and contracts must include an adequate break clause or clawback clause.
The exceptionally poor performance of the MOJ in handling contracts has been well documented. For those members of the Committee who are not acquainted with Jajo the rabbit, he was—and probably still is—the pet rabbit that was successfully registered as a court translator and booked in for shifts after the Ministry mismanaged its language service contract, a matter that is still ongoing.
We have already touched on the Ministry’s shambolic performance, but I will recap the assessments given of the process. The chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), said:
Those would be swingeing criticisms from any Select Committee and we all know that the Chair of the Justice Committee is nothing if not emollient and fair in his judgment; I have certainly not heard him make comments of that order before.
We are now dealing with the fallout of another contract that was mismanaged for years, with two tagging providers being allowed to overcharge the taxpayer by millions of pounds to tag offenders who were back in prison, abroad or dead.
Mr Slaughter: That is an easy point to make. [Hon. Members: “It is true.”] Good heavens. The Minister has woken up his Back Benchers for the first time in two days. Let us have a discussion on that point. If those same companies have been found wanting to this degree—I will come on to this in some more detail later and so hon. Members can marshal their arguments and come in then—let us be cautious about what we do now. Let us not run headlong into wholesale privatisation with people who have been proven time and time again to fail. There are serious questions over whether the MOJ has the capacity to manage such a huge sell-off of a service as the Government are proposing.
If the Government are determined to press on with their reorganisation, the first thing they need to get right is the procurement process and contracts. Amendment 33 aims to make the Ministry a more intelligent customer this time round. The first condition is compliance with the Freedom of Information Act. Although the Act provides for supply chain companies to be considered as holding information on behalf of public authorities, we know that contracted providers in the justice sector are not subject to anywhere near the same transparency requirements as publicly run services. Private prisons are not subject to FOI in the same way as public prisons. As outsourcing is stepped up, more and more information about public services and public money is being pulled out of the public domain. With the backdrop of the tagging scandal it is safe to say that companies are not always forthcoming about the things that they are up to.
Section 5 of the Freedom of Information Act 2000, referred to in subsection (a) of our amendment, affords the Secretary of State the power to designate as a public authority any person deemed to be exercising functions of a public nature. I am sure the Minister would agree that there are few things of a more public nature than responsibility for public protection. Providers are bidding to take on that responsibility and the financial rewards they hope will come with it, and they should without
Community rehabilitation companies, if they come into being, will sit at the centre of the criminal justice system on limited contracts and manage the day-to-day protection of public safety. The Government have already acknowledged to the Joint Committee on Human Rights that they consider companies providing probation to be exercising public functions as far as human rights law is concerned. So why not information law? I know the Government are consulting on invoking section 5 to make a possible list of bodies such as housing associations into public authorities. I understand it was a commitment in the coalition agreement as well. We believe the Minister should add community rehabilitation companies to that list.
The Labour party, and in particular my right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Justice Secretary, have pledged that the next Labour Government will deal with this issue by bringing companies providing public contracts into the scope of FOI legislation. The Minister has the opportunity to get a head start. I should be interested to know whether that is the intention. Of all the requirements here, that would seem to be the most basic.
Subsection (b) of the amendment would restrict the length of contracts to a maximum of five years. The benefits of that are clear. The market the Government are seeking to create in probation will be flooded with new, inexperienced providers. A guarantee that they can bed in for the next 10 years without any competition or freedom for the Department to take their custom elsewhere is not the best message to send. Public providers operate year to year with uncertainty over their budgets and smaller specialist providers such as women’s centres are often left uncertain as to whether they will exist in a few months’ time. The amendment would leave a significant amount of certainty built in, comparatively, for those seeking to bid.
Democratically, the limit would prevent the Government from tying the hands of a whole future Parliament by signing contracts that long outlast their right to make decisions. A five-year limit is competitive and would allow for the regular renewal and improvement of contractual arrangements. In a contracting exercise as uncertain as this one, where the performance of the providers is far from guaranteed, the amendment would give a cut-off point from which the Government could start making improvements and contracting on the basis of what has worked.
I will give two examples from my local experience. The first is the Minerva project, which I mentioned this morning. It is funded by the London probation trust and, as a consequence of the Government’s proposals, its funding will expire in March next year. Those working for the project know nothing about their future funding. The project has other funders, but by poor coincidence, lottery funding is ending at the same time. From 1 January the project will have to think about laying off staff, because it will need to give adequate notice.
The Government paint a rosy picture that there will somehow be a mixed economy of large private companies employing small voluntary organisations. First, the system already works; the probation trusts already work closely with the voluntary sector. Secondly, the system has been fractured and I doubt, given the poor standards and the cost-cutting that one sees with these monolithic multinational companies, that there will be interest in projects such as Minerva.
Equally, I look at how public authorities are operating. My local authority contracts to Serco, mostly on waste and street cleansing operations, and it has suddenly decided—it did so first on the basis that it believed in public tendering—unilaterally to extend those contracts by six years. That is happening all the time. What purport to be competitive tendering processes turn into monopoly or near-monopoly suppliers making themselves indispensable or so reducing the capacity of public authorities to tender that they continue as unitary providers, almost without limit and with nodded-through automatic renewals. If that is what we are looking towards with the clause, asking for a five-year tendering process is not unreasonable.
We come to the key performance measures and the inclusion of break and clawback clauses. After G4S’s failure to deliver Olympic security, discussions on how much it would pay back lasted more than a year and the company spent £8.5 million on lawyers to support those negotiations. A break clause is self-explanatory common sense. When a contractor is failing miserably to provide the contracted service, the taxpayer should have the right to stop paying and look for effective provision elsewhere. Providers need certainty, and there must be strict criteria on which a break is permitted. That is why we would require the Secretary of State to set out the performance standards clearly and in statute.
I do not know whether this is because of the symbiotic relationship that the Ministry has, but the levels of fine for the failure of the interpreters contract were about £4,000. That was a pitiful and minimal sum of money, but whenever one queries these matters, one is told that it is better to negotiate and to try to agree a way forward with the providers. We have public providers that are constantly under the cosh and morale is at rock bottom, because of the way they are treated, and private providers that are constantly feather-bedded. The amendments offer basic safeguards that the Government should provide the taxpayer as standard in decisions to tender out a public service at their expense.
were not permitted to bid for probation contracts. I am surprised to have to table an amendment like that to a Bill in this House. The Minister should be able to see the need for the amendment. If it is not agreed, that runs utterly in the face of any reasonable standards of public probity.
Mr Slaughter: I do not know. We are moving into US-style schemes in which large companies can mitigate their offences by payment of fines. That is in the context of admissions of guilt, of public censure and high levels of financial penalty. None of that applies here. What seems to apply here is that the day before it attends a Select Committee, G4S could say, “How about £24 million?” The Secretary of State is absolutely right to refuse that offer, but the climate that allows that offer to be made is one of “We are all mates here together, aren’t we? Can’t we settle this quietly with a quick £24 million and move on?”
I do not think the Minister realises just how low in the public esteem his Department’s tendering and contracting strategy has sunk. It is a pretty basic criterion for the fitness of a company to run a service in the criminal justice system. Members will be aware that two of the key players in the potential bidding process for “Transforming Rehabilitation” are currently under investigation by the Serious Fraud Office. One of them is also under investigation by the Metropolitan police for the handling of another contract.
The Secretary of State does not appear to think that is reason enough to prevent them bidding for more taxpayers’ money, as he will not, as we call on him to do, bar them temporarily from the process until they have been given a clean bill of health. I hope that hon. Members on the Government Benches agree that companies under investigation for criminal activity by the police or the SFO should not be permitted to bid for public contracts until or unless the investigation delivers a clean verdict. I hope the Minister will explain why the Secretary of State does not also believe that should be the case.
I am not going to labour the point but I want to put it on the record. This is not an Opposition prejudice against private companies; it is not even a prejudice against those particular private companies. It is empirical evidence of the serial failure in all types of Government contracts of those particular firms.
We have the tagging saga. The Secretary of State, under conditions of market sensitivity and great secrecy, had to come to the House in July and make the announcements about Serco and G4S on the tagging contracts. Of course, G4S would not agree to the terms the Minister had set out. That led to the admissions of overcharging and the crafty offer from G4S.
I picked up the Evening Standard on the way home last night. Almost more regular than a feature about Boris and what a good job he is doing are stories about what the Public Accounts Committee, Serco and G4S are doing. Last week we had the revelations from the BBC about Serco’s running of the community payback schemes across the capital. They found that service projects were not properly supervised and there were inaccuracies in reporting cases of offenders not attending such schemes. There were insufficient resources to ensure offenders on so-called community payback projects were properly supervised. A whistleblower told the BBC,
The BBC reported that there have been delays and inaccuracies in the reporting of occasions where offenders have breached their sentences by failing to attend payback
“The powerful Public Accounts Committee will take a detailed look at Serco’s work after whistleblowers alleged serious failings. Committee Chairwoman Margaret Hodge told the Standard she will also refer the matter to the National Audit Office”.
That comes only days after the tagging contract scandal, and only days after the Secretary of State rightly cancelled the privatisation of three prisons because the only alternative was to let Serco run them. I am happy to give the Secretary of State credit for such actions, but I am not happy that he is either unwilling or unable to see that there are problems with those companies. The companies admit the existence of those problems by dismissing or quietly getting rid of their senior officers, but such problems show up not only in the MOJ but across local government and the health service. The Minister may well be aware of the Care Quality Commission report this summer on the out-of-hours service in Cornwall and the Isles of Scilly, which highlighted that there were
That contract was with Serco, which was also accused of falsifying records to make the service appear faster than it was. Serco admitted that it had done so, and it apologised. Again, the PAC investigated that situation. The CQC report noted that a quarter of staff had not completed mandatory training. Although Serco said that its GPs received formal clinical supervision, not all staff had received regular appraisals. Inspectors noted:
Mr Slaughter: I am not surprised that the Minister does not like listening to what I have to say, because it is uncomfortable to hear. Whether in the health service, the MOJ or anywhere else, the failings are the same. They are caused by a lack of professional attitude and a profit-driven culture. That is bad enough in staff who are picking up litter; it is pretty bad in a manager of local health services; and it is extremely serious in a manager of serious, violent and dangerous offenders. I hope that the Minister will take the matter terribly seriously.
Jeremy Wright: Before the hon. Gentleman gets too far up on his high horse, let me remind him that the previous Labour Government negotiated the contracts of which he is being so critical. The previous Labour Government failed to notice that there were any problems with those contracts. This Government have noticed that, conducted an audit and made a reference to the Serious Fraud Office.
Mr Slaughter: I do not remember the previous Government being involved in the wholesale privatisation of the health service, and I do not remember them letting the community payback contract to Serco. That is not the point, however. One reason why such matters take so long to come to public attention is that there is deliberate subterfuge, which has now been admitted: falsification of records, hiding records and false reporting. The Minister told the Committee this morning that it would be for prison governors or the courts to make judgments about providers, but that relies on their having accurate and honest information. All the evidence shows that, in contract after contract, that is not the case. Rather than dwelling on whose fault it was at any point, let us take action to improve the current situation.
I have made that point, and I will move on to amendments 30 and 31, which should be less contentions. Amendment 30 is technical to allow amendment 31 to have effect. Amendment 31 deals with providers of supervision for young offenders, and, more specifically, for the transition of those who are eligible for adult supervision arrangements after release. Clauses 3, 5 and 7 provide that young offenders who are 18 by the time of their release will be subject to adult supervision requirements as provided for under this chapter. The amendment is designed to clarify the transition arrangements when an offender enters custody as a child but leaves it as an adult eligible for adult supervision. Clause 7 makes it clear that a young offender who leaves custody at 18 may be supervised by either an officer of a provider of probation services or a member of the youth offending team, but the clause applies only to young offenders serving a detention and training order. The amendment seeks clarification that YOT supervision will also be available on release for youth offenders held in custody under different sentencing arrangement, such as those sentenced under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. Will the Minister clarify whether YOT supervision will be available for all young offenders leaving custody, and can he assure us that the Bill currently provides for that, or will be amended if necessary?
Paragraph (b) of the amendment is concerned with the process by which decisions on when to transfer a young offender from YOT supervision to a new provider will be made. The Government’s target operating model dictates:
“The national probation service and youth offending team will be responsible for making the decision on whether an offender who is sentenced as a juvenile but is 18 or over at the point of release should be supervised by a CRC or the NPS or whether they should remain with the relevant YOT, and for making the arrangements for any transfer. The decision to transfer a case to the NPS or CRC (or not) will remain a local decision based upon the needs of the young person.”
It is welcome that the Government have seen the importance of the youth offending team being part of that decision, but there is still a lack of clarity as to how the decision will be made and who has the final call.
“concerned would make a practical decision about the needs of the individual, but as the noble Lord, Lord Beecham, said, if that was not available, who would be the judge? Would that have to go back to court? I will think about that, and if there is a gap we will fill it.”—[Official Report, House of Lords, 5 June 2013; Vol. 745, c. 1195.]
We recommend—the amendment provides for this—that control over the transition of a young offender should be managed by the youth offending team that has the expertise in working with them. It is a small clarification, but we believe that it will be operationally important to ensure that transitions are expertly and easily handled.
Finally, would the Minister be happy to update the Committee on the Government’s thoughts on the issue, and possibly consider clarifying the process for the decision? Dependent on that, I do not intend to press amendments 30 and 31 to a vote, but I am keen to press amendments 33 and 34. I referred earlier to the two amendments tabled by the right hon. Member for Dwyfor Meirionnydd, so I do not propose to address them further now.
Mr Llwyd: I rise to speak to my amendments, but also to indicate my support for amendments 30 to 34, tabled by the official Opposition. If the Committee divides, I am happy to vote accordingly. I also should have said that it is a pleasure to see you back in the Chair, Ms Dorries.
Amendment 20 is self-evident. It would ensure that it is probation trusts or the national probation service that undertake the supervision of persons serving 12 months or less. Probation trusts have not been invited to bid for this work because, it is said, the schemes will all be based on payment by results, and payment by results will not be a good use of taxpayers’ money. Instead, as we know, private companies will be able to use reserves or profits to subsidise the schemes until it has been evaluated whether or not they worked.
There is a little evidence on payment by results. If we look at the five recent drug pilot schemes, they show that fewer people completed the drug rehabilitation courses under payment by results than before payment by results was introduced. That is not an encouraging situation. However, there has been a modest increase in persons who abstained from drug misuse, although statistically it is too small to be of relevance. There has also been very little impact on getting drug users into accommodation. The information on payment by results from Her Majesty’s prison Peterborough and elsewhere is also patchy, and the two probation payment by results schemes in Wales and the midlands were abandoned before they began. Payment by results as the basis for justifying competition is therefore untried and untested.
By contrast, we all know that the probation service works. The latest reconviction figures are 58.5% for those serving less than 12 months and getting no supervision—the situation about which much of the Bill is concerned and about which there is unanimous agreement that something should be done; 36.2% for those serving between one and four years who are supervised by probation; and 30.7% for those serving between four and 10 years who are supervised by probation.
It is therefore likely that that there would be a significant decrease in reoffending among prisoners with short-term sentences if the supervision work were to be undertaken by the probation service. That view is statistically supported and is common sense. It is said that that decrease could be as much as 20%, or more. That would have a dramatic positive effect on the situation.
We also know that the probation service has a good track record of discharging orders for good progress. If a person under a 12-month period of supervision has demonstrated—by, say, the six-month mark—that they have complied with all conditions included in the order, a reduction in the term can be applied for. As I have argued previously today, early discharge of orders would have a substantial effect on costs. The overall case load of the probation service has fallen slightly in the last couple of years, again creating a small pot of money that could be dedicated to the task of supervising that group of offenders.
There is overwhelming evidence that the probation service is performing to a very high standard. Figures produced by the National Offender Management Service in July 2012 detail the annual performance ratings of the probation trusts over the previous year. Performance is measured using an assessment framework that is known to the Committee, so I shall not go through it. Suffice it to say that the figures show that no probation trusts are in band 1, which is the rating for serious concern about performance; none are in band 2, which is rated as requiring development; 31 are in band 3, which is rated as showing good performance; and four are in band 4 and have been awarded the rating “exceptional performance”.
Northumbria Probation Trust is one of the four areas graded as having exceptional performance; the others are Humberside, Durham Tees Valley and Warwickshire. The Northumbria trust has a budget for 2012-13 of £27.4 million, which includes a cut of £1.8 million on the previous financial year. During 2011-12, Northumbria exceeded many of its national targets. The figures show that 88% of offenders successfully completed their community order or licence, compared with a target of 80%; 252 offenders successfully completed drug rehabilitation requirements, set against a target of 225; and a further 88 offenders completed alcohol treatment requirements, against a target of 50. The figures also show that 88% of offenders secured suitable accommodation by the end of their sentence, against a target of 83%; 34% of offenders were referred to an education provider and achieved an award, against a target of 21%; and 100% of pre-sentence reports were completed within the required time scales, set against a target of 90%. In addition, 687 offenders retained employment for at least four weeks, against a set target of 400.
The figures for all trusts also show that victim feedback in 2011-12 was positive in 98% of cases, that 49% of offenders were in employment at the termination of their orders, that 89% had accommodation and that 82% of orders or licences were successfully completed during the period. Completion targets were also met or exceeded on the vast majority of probation programmes. From a survey of 21,130 offenders in 2001, 76% gave positive feedback.
On reoffending, then, the actual rate was better than the predicted rate nationally and, in all but five probation areas, three quarters of orders or licences were successfully
That is a long list of figures, but it is right for me to give them, because they show why the probation service won a prestigious award in October 2011—the British Quality Foundation gold medal for excellence. The award is given to an organisation in recognition of its outstanding continued commitment to sustained excellence over a number of years.
Supervision by probation trusts would also benefit from the localism agenda in the probation service as a whole, to deal with arrangements with the voluntary sector and the police, and through electronic tagging, which will be used predominantly for that type of offender in the private sector.
In conclusion on amendment 20, the probation service is best placed to deliver supervision of the short-term prisoners group—it has an excellent record for reducing reoffending, it is hitting all its targets and it is winning awards. On Second Reading, the Minister asked me to produce figures for what that would cost, but the work is still ongoing, although I hope before the conclusion of our proceedings to give a reasonable figure from a far more eminent number cruncher than I can ever aspire to be. For now, what I am saying is that if this morning we had been able to persuade the Government that in many cases it would be possible to define the precise term of the engagement of supervision—the supervisors—and that in many instances there would be a need to determine short of the 12-month period, a huge amount of resource could have been kept, and that would have gone into extending the remit of the probation service. That is beyond doubt—it is absolutely common sense.
Amendment 22, in effect, is about staff being seconded from one area to another within the service. In brief, it is essential for probation staff to have confidence in any proposed new structure, but at the moment such confidence is not there. On the first day of our deliberations, the Minister went out of his way to talk about some of the staffing arrangements, which was helpful. Nevertheless, I want to place on the record a short introduction to the problems still encountered.
Staff fear that they may be made redundant, that they face cuts in terms and conditions, that their case loads will be higher, that they will have few colleagues, that their pensions will be affected and that their employment status will suffer greatly. The Minister will tell me that he has already given answers to some of those matters, and I appreciate that, but I hope that he will place something on record.
Amendment 22 would ensure that all staff affected by the “Transforming Rehabilitation” proposals would be employed primarily by the national probation service—basically, as civil servants—and that any staff who joined other providers would be seconded to those providers, rather than transferred arbitrarily and almost certainly against their will. That would ensure continuity
Such a provision would go a long way to allay the fears of staff that their terms and conditions, their continuity of employment and therefore their pension provision will not be adversely affected. Amendment 22 would also ensure that everyone under the “Transforming Rehabilitation” proposals, no matter for whom they are working in the future, is treated equally and without discrimination.
To change the status of a member of staff’s terms and conditions or even the nature of their employer without proper consultation and guarantee of staff’s equal status with their counterparts in the probation service would be unfair and discriminatory. Amendment 22 would allow the transfer of staff to go ahead in the future—following a pilot, I hope—and allay many of the fears of staff involved in the highly stressful transfer procedure.
Alex Cunningham (Stockton North) (Lab): It is a pleasure to serve under your chairmanship this afternoon, Ms Dorries. On Tuesday, I spoke at length about the serious implications of the failure to properly pilot the reforms to probation services. I will not repeat myself, but I will build on something that I and other hon. Members, including my hon. Friend the Member for Hammersmith, mentioned.
As we all know, private companies that deliver public services are exempt from the requirements of the Freedom of Information Act, and the Information Commissioner has no power to investigate private contractors. He cannot serve information notices that require contractors to supply information for an investigation or take enforcement action if a contractor fails to comply with its contractual obligations. Bluntly, it is nigh on impossible to get our hands on the details of much of what private companies are up to with public money. Amendment 33 seeks to correct that oversight.
I have only been in the House since May 2010, but I have been concerned for many years—through the years of the previous Labour Government and beyond—about the tremendous lack of transparency around the use of public money when it is handed over to private companies and other organisations. My anxiety has increased considerably since the coalition Government came to power because every year they have distributed billions of pounds of public money from the public sector into the private sector. There are good grounds for anxiety, because many of the vital services on which we rely on a daily basis—from waste management and highway repair services to schools, hospitals, early years care, justice services and everything in between—have been contracted out to the private sector and other providers. No public service is safe from the Government’s zeal for outsourcing, which they pursue regardless of whether evidence supports that model of provision.
The Justice Secretary’s efforts to extend supervision to offenders sentenced to less than 12 months, with 70% of probation work scheduled to be contracted out to new private and voluntary providers, confirms that the
I support new ideas in justice and offender rehabilitation, and I am a firm believer that innovative work can and should take place within the probation service. It is likely that innovation will require a mix of public, private and voluntary sector provision. But it is important that new ideas or models are tested first so we learn lessons from the mistakes and shortcomings that are inevitable in the early stages of design. A crucial part of that process is freedom of information—the lifeblood of progress and improvement. Without the transparency that is provided by the Freedom of Information Act, we will not be able to share what succeeds to bring new ways of working into the justice system. Critically, unless providers are designated as public authorities in accordance with the Freedom of Information Act, we will not be able to discover what does not work. That is a daunting prospect.
Although I would be the first to acknowledge that the freedom of information provisions can, at times, be cumbersome, I am in no doubt that they serve a greater good. Freedom of information requirements allow those on the outside looking in—the taxpayers who fund service provision—to delve into the details and scrutinise the outputs to ensure that they are getting value for money through providers that are fit for purpose. The provisions allow politicians, the media and other organisations to scrutinise what those companies are up to. We are offering Government Members a real gift today, which they will be able to use to research and publish information about any of the private companies that, in all likelihood, will be delivering services commissioned by the Labour Government when we come to power in 18 months’ time.
Alex Cunningham: Conservative Members will love it. They will be able to use the provisions to find sticks with which to beat the future Government. It is very much in their interest to vote with us today. I may not convince Conservative Members because they will say that commercial confidentiality must be retained at all costs, but perhaps Liberal Democrat Members—at least one is here—would love the chance to exploit the new transparency that we are offering and join us in the vote.
Mr Slaughter: Not only is he in the Room, I note that he features the “Save Probation” campaign on his constituency website with links to its admirable blog, so I am sure he is thinking very carefully about what we are saying.
Alex Cunningham: Liberal Democrat, Conservative and other hon. Members will know that with around £100 billion of taxpayers’ money being spent each year on the provision of public services by the private and voluntary sector, it is essential that that expenditure is properly evaluated and that service providers are held to account for their actions.
It is a core tenet of our democracy that taxpayers can access the information to do that thoroughly and rigorously. Under the current Government, the number of services run by the private sector is growing. At the same time, there is a parallel growth in the size of the democratic deficit, so not only is more taxpayers’ money being entrusted to companies that may have limited or no experience of such service provision, as will be the case with the probation service, but there will be an increase in the number of activities undertaken by Departments that are not subject to freedom of information legislation. As a result, the number of contracted services that are unaccountable and lacking full scrutiny is also increasing.
That leads to a broader issue. We already know that the probation service is an example of good public service provision in an extremely difficult area. Tempted as I am, I will not remind the Committee that the probation trusts are all said to be delivering a good or excellent service. Like the goose that laid the golden egg, the probation service has managed to oversee a drop in reoffending rates to 34.2%, after a decade of steady year-on-year increase, and has made savings of around 20% over the past five years. It has helped to reduce crime rates while maintaining public protection.
As things stand, private sector companies responsible for delivering public services can hide behind a cloak of commercial confidentiality. Billions of pounds of taxpayers’ money are being awarded to those companies under contracts that are barely transparent, yet, they are free to exploit the benefits by gaining detailed knowledge of successful public sector bodies through the submission of freedom of information requests. This same information can then be deployed to undercut, imitate or outbid the very same public sector bodies when contracts are tendered or renewed.
That leaves companies in the strongest possible position to exploit that knowledge but, more importantly, enables them to hide what they are doing with large sums of public money. The fact that one contractor admitted overcharging the Ministry of Justice and then offered to return the cash prompts a question about the level of scrutiny applied to such contracts, whether by this or a previous Government.
The Ministry of Justice was stripped near-naked of resources by the poor settlement from the Treasury and may no longer have the ability, or perhaps even the desire, to scrutinise its contracts effectively. That is all the more reason to require companies that spend taxpayers’ money to answer directly to them by being compelled to provide responses to questions about how they are doing. They should be open to freedom of information questions.
Similarly, public and private providers will ultimately be responsible for delivering equivalent services, albeit to offenders with different categorisations of risk. So why should they not be subject to the same scrutiny? What would happen in the unlikely event that some form of public partnership won a contract to deliver probation services? Would they still be subject to the freedom of information provisions when a private company rival for future contracts would not? The specifics of the particular environment of supervision and the potential vulnerabilities of those involved, not to mention the potential risks to the wider public when things go wrong, mean that transparency and accountability in the system are even more essential than in other public services.
Private contractors providing these services should undoubtedly be held to the same standards of responsibility as state providers and I do not believe that anyone in this room would argue to the contrary. It is logically coherent, then, that the rights to information about the regimes and establishments should also be equivalent. After all, this is about value for money but also sharing best practice. It is only right that all providers of probation services, be they public, private or voluntary sector, are subject to the same requirements. Only then can we reap the rewards of sharing good practice across probation services. However, many private sector companies simply refuse to comply by publishing detailed information about how they operate. This is in stark contrast to the public sector, where the amount of available data has rightly expanded hugely.
So that there is no mistake, I remind Members that the Prime Minister, announcing measures in 2011 to allow further information to be published relating to the spending and performance data of public services, spoke of the “power of transparency”. Indeed, he went on to assert that “information is power” and even suggested that
Put simply, many non-public sector providers shelter from open scrutiny, operating behind a screen of secrecy that is simply not compatible with the principles of public sector provision. Such stealth and secrecy cannot be allowed to continue, and certainly cannot be allowed to infiltrate a service that deals with volatile and vulnerable offenders who could pose a danger to the public, were things to go wrong. The amendment, by ensuring that all providers of probation services are designated as public authorities, will ensure that it does not.
It is a fundamental underpinning of our democracy to have such checks and balances in place to ensure that those in positions of power do not act out of turn or beyond their remit. Freedom of information, as prescribed by the Freedom of Information Act, is a central constitutional necessity that ensures Governments cannot exceed their proper scope or authority. As a simple matter of extrapolation, as more and more public services that were once the sole preserve of the Government are contracted out beyond the public sector, it is only right that steps be taken to ensure that the same access arrangements are required of private and voluntary sector
One of the major risks that flows from such a position of secrecy is the potential for fraud or corruption. In the remit of public service provision, this is a crime against each and every taxpayer, and the public should be granted the ability to protect themselves against such transgressions by opening up all providers of public services to the requirements of the Act. More alarmingly, in the remit of justice and with specific reference to the probation service, any such indiscretion would be a major risk to public safety. This is a very real risk, as demonstrated by the debacle involving G4S, Serco, the contracts for prisoner transfers and electronic tagging. The Government were potentially over-charged by tens of millions of pounds, the Serious Fraud Office was called in to investigate, and the Ministry of Justice is auditing every contract held with G4S and Serco. Do we really want to take a chance with the probation service? That is exactly what we are doing here—taking a chance with the probation service.
Let us not forget that any similar sloppiness or deceit when it comes to managing offenders could have disastrous consequences for public safety. We must not be fooled into thinking that the underperformance of those companies has been blown out of proportion or taken out of context. As I said on Tuesday, anybody watching the BBC’s “Newsnight” on Thursday 21 November will have been as horrified as I was to hear the stories about Serco, which successfully tendered to be the delivery partner of the London probation trust in delivering community payback services across the capital from October last year. I do not need to repeat the details I outlined in a previous sitting. Suffice it to say that the failings were catastrophic, and the mismanagement prolonged and damaging. None the less, despite mistakes that led to time-sensitive offender records not being updated for extended periods, delaying and often inhibiting the attainment of justice, the contract with Serco to deliver the community payback scheme in London has not been retracted.
It is for such reasons that we cannot afford to overlook the importance of the amendment, which will oblige the Secretary of State to publish key performance standards that must be met by providers, as a crucial safeguard against such calamitous failures being repeated in the delivery of probation services. It will undoubtedly enhance accountability by providing a framework of metrics against which performance can be gauged and any failure identified at the earliest possible opportunity.
In case providers fail to deliver the standards, further provision is made for break clauses, which would grant the Secretary of State the power to act in the public interest and terminate the contract to prevent further failures. Another crucial element of the safeguard in the amendment is the provision for a recuperation clause, which would make the Secretary of State responsible for agreeing with providers a percentage of the contract fee that must be returned to the Exchequer if providers fail to meet performance standards.
The additional safeguards in the amendment are particularly important given the Government’s recent poor track record in commissioning services. Questions such as how much the contracts will cost, what the
The Department’s responses citing commercial sensitivity strike me as nonsensical. Even a rudimentary grasp of economics confirms that full disclosure of information is required for markets to function properly and deliver goods and services efficiently. The Ministry of Justice’s secrecy is very much a source of inefficiency, driven by a desire to minimise expense at all costs, even when the overall goal of successful rehabilitation could suffer as a consequence.
I mentioned on Tuesday that when it comes to contracting, the Secretary of State for Justice has declined to learn from not only the experiences of his colleagues in the Department for Work and Pensions, but the mistakes of his own Department. It is worth reiterating that point. I refer, of course, to the Ministry’s language services contract, which began in 2012 and was branded “shambolic” by the Select Committee on Justice. Coincidentally, the Committee also identified that the Ministry did not have sufficient understanding of the complexities of court interpreting and translation work before it decided to put the services out to tender.
Alex Cunningham: Sure. Failures to heed the warnings of experienced professionals in the sector, and to put sufficient safeguards in place to prevent service interruptions, were also identified. In short, as the Public Accounts Committee noted, the Ministry was
We want to ensure that there are protections, and that the public can look at the activities of these private organisations that are spending tens of billions of pounds. I see that the hon. Member for Solihull has returned to the room. For her benefit, I will again urge the Committee to back this opportunity for greater transparency. I offer her the opportunity to back our bid for greater transparency and openness by ensuring that private companies are subject to the same provisions as those in the Freedom of Information Act. It would be a benefit to her in future, when she tries to dig into and look at the future activities of a Labour Government.
I think I have exhausted what I was going to say. [ Interruption. ] If Members wish, I can further encourage the Liberal Democrats to support the amendment. However, I think that their heads are against us, despite what they might say on their websites. I support clause 3, with amendments.
Jeremy Wright: I thank the right hon. Member for Dwyfor Meirionnydd and the hon. Member for Hammersmith for presenting their amendments—some considerable time ago now. I will try to deal with the large group of amendments before us. I hope that the Committee will bear with me as I take each amendment in turn.
Let me start with amendment 30, which would make provisions in section 256AA of the Criminal Justice Act 2003—the section that creates the new post-licence supervision period—subject to a new subsection (8A). A number of the other amendments are based on the new subsection (8A), so amendment 30 is effectively a paving amendment for the rest of the group.
Amendment 31 is about ensuring that the transition from youth to adult services is as robust as it ought to be. Let me say straight away that the Government support that intention. We recognise that the transition between youth and adult services is a potential point of vulnerability for young adult offenders. The difference in services for those in the youth and adult systems has been described as a cliff edge, and as the Committee will be aware, there have been a number of inquest reports and serious case reviews that reference the need for a smooth transfer and good exchange of information, and point to the heightened risk, in this period of transfer.
The Ministry of Justice, the Youth Justice Board and the National Offender Management Service work closely together to help improve support for young people transferring between the youth and adult justice systems. That has resulted in the transitions framework to support workers in the community, the transitions protocol to support workers in custodial settings, and the Y2A—Youth to Adult—portal, which is an information-transfer web-based system.
Proposed new subsection (8A)(a) in the amendment provides that anyone sentenced as a juvenile but released aged 18 to 21, and then subject to the new top-up supervision period, can be supervised in the community by a youth offending team or by a provider of probation services. Under our new arrangements, that would be either the national probation service or a community rehabilitation company, depending on the risk of serious harm posed by the offender. As the hon. Member for Hammersmith made clear, the Bill provides that any offender sentenced to a detention and training order, or a sentence passed under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, who turns 18 before they are released from the custodial part of their sentence will be treated the same as other adults. That means that they will receive an overall period of at least 12 months’ supervision in the community.
In respect of detention and training orders—the main custodial sentence for under-18s—there is already express provision in the Bill for top-up supervision to be delivered by either the youth offending team or a provider of probation services, which would, as I say, be either the NPS or the CRC. For section 91 sentences, which are sentences available for under-18s in respect of certain serious offences, there is no equivalent express provision in the Bill.
As section 91 sentences are for such serious offences, only a handful of them will be shorter than two years. It is also harder to be clear about the maximum age at which offenders might be subject to supervision. The amendment gives a cut-off point of 21, but there may be some offenders who are not caught by that. However, we are committed to ensuring that the option for youth offending teams to supervise section 91 offenders during their top-up supervision is provided for. That is consistent with the current situation as set out in the transitions framework. Under the new system, we propose that that should continue, with the NPS and the YOT responsible for making transition decisions and arrangements.
The decision to transfer a case will remain local, and it will take into account the needs of the young person, their maturity and risk factors, in order to minimise risk to the public, safeguard the young person and aim to reduce reoffending. That decision is best left a joint one, rather than the responsibility of a single agency as in
However, in view of our debate today, we will take away the amendment tabled by the hon. Member for Hammersmith and consider whether the outcome of ensuring that youth offending teams are able to supervise the small number of section 91 offenders affected is better achieved by express provision in the Bill. I hope that in those circumstances, he is prepared to withdraw the amendment.
Let me turn to amendments 20 and 22, which were tabled by the right hon. Member for Dwyfor Meirionnydd. Amendment 20 would ensure that only staff working in probation trusts could supervise offenders during their top-up supervision period. Interestingly, the same restriction would not apply to supervision of offenders during their licence period, or offenders sentenced to community orders or suspended sentence orders. Amendment 22 would, by contrast, ensure that offenders could be supervised during the top-up supervision period only by national probation service staff.
As the Committee knows, and as we debated at length on Tuesday, as part of our reforms we plan to replace the 35 probation trusts with a single national probation service and 21 community rehabilitation companies. The vast majority of offenders will be managed in the community by these CRCs. The Committee will be pleased to hear that I do not want to go back through all the arguments made on Tuesday, but I do want to make the point again that by opening up the market to a diverse range of providers, bringing in the best of the private and voluntary sectors and incentivising them through payment by results, we will not only deliver better value for money for the taxpayer but drive innovation and deliver real reductions in reoffending.
The Bill delivers a key components of our reforms: the extension of statutory supervision and rehabilitative support after release to short-sentence prisoners. This extension of support has again been widely welcomed today, but it cannot be delivered in isolation. Only by radical changes to the system for managing offenders can we generate the savings that we will reinvest in extending this rehabilitative support. Put simply, if we keep the current system of probation trusts, there can be no top-up supervision period.
The right hon. Member for Dwyfor Meirionnydd referred to my request to him on Second Reading; I quite understand that he is still working on that, and I look forward to the outcome of his considerations. He will recognise that in the absence of identified ways to pay for this additional supervision, we will all be sceptical when it comes to deciding whether amendment 20 is genuinely designed to improve the Bill or is a wrecking amendment that would wreck not just the Bill, but wider reforms. He has been quite clear and straightforward in his opposition to those reforms, so I entirely understand his point of view; I just do not agree with it.
Amendment 22, on the other hand, recognises our proposal to create a national probation service, and I am grateful for that. It would require those supervising offenders during their top-up supervision period to be national probation service staff, although they might be seconded to other providers of probation services, including, presumably, community rehabilitation companies. It is, of course, important to ensure that those managing offenders have the necessary skills and expertise; we discussed that in debate on a previous group of amendments. However, that does not necessarily mean that they have to be members of the national probation service. We expect to see skilled probation professionals working across all sectors. As I have said, we will place a contractual requirement on community rehabilitation companies to have and maintain a work force with appropriate levels of training and competence.
As the hon. Member for Hammersmith set out, amendment 33 would impose various duties on the Secretary of State, so that he could lawfully make arrangements for an officer of a community rehabilitation company to be a supervisor for top-up supervision. Let me take the conditions in turn.
The first condition is that community rehabilitation companies are designated as public authorities within the meaning of section 3 of the Freedom of Information Act. As the Committee will know, the Freedom of Information Act underwent post-legislative scrutiny by the Justice Committee, and we have three members of that Committee with us. It considered the issue of public services being delivered by private contractors, and did not recommend that the FOI Act be formally extended to private providers of public services. The Justice Committee acknowledged that the existing practice whereby private bodies are required by contracts to assist the contracting public authority in discharging its obligations was “working relatively well”, and recommended that it continue but be kept under review.
In the Government’s response published in November last year, we accepted the Committee’s recommendation and said that we would issue new guidance to public authorities on when it would be appropriate for contractors to share information to help the contracting public authority to answer FOI requests. We aim to publish this revised guidance in spring next year. The Government think that that strikes the correct balance between transparency and avoiding placing unnecessary burdens on private businesses.
The second condition is that CRC contracts will have a maximum length of five years. When we launched the competition on 19 September this year, we proposed that contract length should be between seven and 10 years, with the option to extend for a further three years. We want community rehabilitation companies to take a long-term view of the services that they are delivering. We want them to invest in building, innovating and improving their services, so that they make a difference to reoffending rates. We believe that seven-to-10-year contracts will enable them to do that, and will deliver the best value for money for the taxpayer.
Jeremy Wright: Yes, I can give that assurance to my hon. Friend. He is right that it is important that we involve smaller organisations, particularly those in the voluntary sector. I am confident that not only will those organisations wish to be involved, but other, larger organisations will wish them to be involved.
One of the reasons why it seems advantageous to have a longer contract is to enable larger organisations to give smaller organisations some certainty about future funding, which the hon. Member for Hammersmith correctly identified as an issue under the current system. We are in favour of a mix of different organisations providing the work.
Mr Slaughter: If that is right, how does the Minister explain the National Audit Office’s response to his consultation? It referred to the failure to achieve that under the Work programme and said that
Jeremy Wright: As the hon. Gentleman has heard me say many times, the programme that we are proposing is not a replica of the Work programme. It could not be, because the model must work within the criminal justice system, which is different. He also knows that our view is that it is important to engage in two important processes to ensure that the voluntary sector and smaller organisations are properly engaged: rigorous bid assessment and contract management. We need to do both those things well to ensure that bids that are brought to us that involve smaller, voluntary sector organisations enable those organisations to thrive throughout the contract period.
I was moving on to talk about the other conditions relating to the performance standards to be set for CRCs. In the target operating model, which we published this September, we explained that the Secretary of State has a duty under the Offender Management Act 2007 to issue national standards for the management of offenders. We said that the current national standards, appropriately modified to reflect the sentencing changes in the Bill, would be reflected in the contract services specification.
We made it clear that we will place additional contractual requirements on CRCs, particularly with respect to how they deliver community order and suspended sentence order requirements, and licence conditions primarily associated with punishing or controlling the offender’s behaviour. That is so that we can ensure that those aspects of the sentence are delivered on time and to a high quality. Those bidding to own and run such companies will have flexibility to design and deliver their own services aimed at rehabilitation, but their bids will be reflected in contracts.
In our target operating model, we also explained that we will have a performance framework, with financial penalties for services not delivered on time or to a high quality. It is most certainly our intention that if providers fail to meet the performance standards we set, they could ultimately face termination of their contracts. That is in addition to our payment-by-results mechanism, under which CRCs would lose a proportion of their total fee if they failed to deliver on one of the most important outcomes: reducing reoffending. We published a “straw man” payment mechanism last May, which proposed a system in which poor performance on reoffending would lead to financial penalties and, ultimately, contract termination.
We are continuing to refine the payment-by-results mechanism, alongside the performance mechanism and the contractual requirements for service delivery. We expect to publish draft contracts early next year.
Under amendment 33, the Secretary of State would be expected to set out the performance standards in regulations to be approved by both Houses of Parliament. We do not believe that that approach is necessary or proportionate. The appropriate place for a performance framework is contracts, not secondary legislation. As I have said, the Secretary of State is already required, under the OMA, to publish national standards for the management of offenders. It is clearly envisaged that those might apply to a range of different providers of probation services, as we discussed on Tuesday. The Act specifically requires the Secretary of State to
“have regard to the need to secure, so far as practicable, that the arrangements in force from time to time provide for the national standards to have the same effect in relation to every provider of probation services”.
I have sought to reassure the Committee on three fronts: first, that our proposed approach on freedom of information is consistent with the Government’s policy as endorsed by the Justice Committee; secondly, that our proposed contract lengths will help to ensure quality of service and value for money for the taxpayer; and thirdly, that we have already set out our commitments to have performance standards and appropriate penalties for failure, and that the degree of parliamentary scrutiny already approved by Parliament in the Offender Management Act is right. I hope, therefore, that the hon. Member for Hammersmith will not press amendment 33 to a vote.
Amendment 34 would render probation professionals working for CRCs unable to supervise offenders during their top-up supervision period if the CRC is investigated by the Serious Fraud Office, the police or another law enforcement agency. Contrary to the belief of Labour Members, the amendment would not prevent G4S, Serco or any other organisation from bidding in the competition. Hon. Members will recall that our reforms involve the creation of 21 new community rehabilitation companies, which will work alongside the new national probation service to manage offenders. Those companies will start off in public sector ownership and will later be sold to successful bidders in the competition. It is those community rehabilitation companies that will be “providers of probation services” in the new system. They will remain separate legal entities from the organisations that eventually take over the ownership and running of them.
Therefore, the effect of the amendment would be felt only if, at some future point, one of those CRCs itself came under investigation by the police, the Serious Fraud Office or another law enforcement agency. The amendment would leave hundreds of offenders without lawful supervision from the moment such an investigation began, whatever the nature of that investigation or the reasons for it. That would be completely the wrong response to a situation that would be dealt with properly through contract management processes, so the Government cannot accept amendment 34. I must ask my colleagues to vote against it if the hon. Member for Hammersmith and the right hon. Member for Dwyfor Meirionnydd wish to press it to a vote.
Mr Slaughter: I am grateful to the Minister for his comprehensive response and particularly for his comments on amendments 30 and 31. In the light of that and particularly the assurance that was given, I will be very happy not to press them to a vote. That is not so much the case with amendments 33 and 34. On amendment 33, we see an absolute need to pin this down, for all the reasons given in the admirable speech by my hon. Friend the Member for Stockton North. On amendment 34, we just heard a combination of scaremongering and sophistry from the Minister. I appreciate that he is in difficulty trying to defend why companies under investigation by the SFO should be bidding for major public contracts in areas of public protection and criminal justice; it is a difficult one, I agree. As usual, he is doing the best he can, but it does not persuade anybody, so we would like to press both those amendments to a vote.
(a) Where the offender is under supervision following a custodial sentence for an offence of a violent or sexual nature, a stalking offence or a domestic violence offence, the supervisor must be an officer of a public sector provider of probation services.
(b) In subparagraph (a) “public sector provider” means—
(i) a probation trust, or
(ii) the national probation service.’.
I can be brief on this amendment. It would ensure that any offender serving a sentence for an offence of a violent or sexual nature, including domestic violence or stalking, had to be supervised by an officer of a public sector provider of probation services.
The amendment is concerned with risk management, and the Government’s proposals to carve up supervision according to an offender’s risk category at the point at which they leave custody. Under the new model, the Government intend low and medium-risk offenders to be allocated to new providers, in the guise of community rehabilitation companies, for supervision or offender management. A much reduced national probation service will remain in place to manage high-risk offenders. The flaw in that model, as has been discussed, is that risk is not static. It regularly fluctuates; in fact, at least 25% of offenders change their risk level during their order, so low-risk offenders have a good chance of not staying low-risk.
The Government know that the fragmented model of offender management that they are proposing is a cause of serious concern, particularly among probation professionals. In their response to the “Punishment and Reform: Effective Probation Services” consultation published earlier this year, the Government summarised the concerns as follows:
“Probation Trusts were concerned that the proposal to split offender management on the basis of risk failed to recognise the dynamic nature of risk. They were concerned about the lack of continuity that would occur for offenders in these circumstances and the additional complexity and bureaucracy which would be introduced by the need for additional information exchange and the delays and risks to public safety that could occur if systems were not well integrated. Many of the Trusts stressed the importance of continuity of offender management in ensuring an effective relationship between the offender and offender manager and the difficulties that could arise if this was not maintained. The importance of a clear point of contact for the courts, police and other agencies was highlighted.”
The Minister tried to respond to that point by saying that if there was a move from medium to high risk, management would remain with the NPS. He makes the right noises about the highest-risk offenders being supervised by the NPS, but he ignores the point made by the former chief inspector of probation for England and Wales, Liz Calderbank, who said that she had “concerns” about the Government’s proposals because
Probation officers have made that point to me a number of times; I am sure that they have made it to the Minister, too. On the whole, the most serious and dangerous offenders are effectively managed by the probation service. Those who commit most serious reoffences, if I may put it that way, are people in the medium-risk category. We may not have the luxury of being able to wait until they move between categories, and they are the people who pose the greatest risk.
The Minister has assured the Committee that the risks are being taken into account through efforts on issues such as co-location, but the basic concern that offenders will have to be swapped to a different team while posing a high risk of harm is still inherent in the system. The amendment would remove from the equation those at risk of committing sexual and violent offences against the person. The amendment provides for those serving a sentence for a violent or sexual assault, including a domestic violence or stalking offence, to be supervised in the public sector, from their release date onwards. That means that they would not have to be transferred between providers if their risk level escalated.
If the Government are determined to push ahead with their fragmentation of the service, they might consider dividing offenders by offence type, rather than risk level. The amendment would ensure that offenders who posed a serious risk of personal, physical harm to a victim would remain with one provider at all times, in spite of changes to their risk levels. In high-risk cases, the potential for delay, confusion about passing information, or the involvement of unfamiliar staff—genuine risks under the Government’s split model—are risks far too serious to run. The Government should remove the unnecessary possibility of high-risk violent and sexual offenders being swapped between providers, and include them in the work load of the NPS from their release.
While we are on the subject, I ask the Minister to clarify a point. Will supervision for offenders who are released from a short sentence, but who are considered to be high-risk, be provided by the national probation service? We hope that it is not the Government’s intention that all supervision of those released from short-term sentences will be provided by community rehab companies, regardless of the level of risk that those offenders are considered to pose. We hope that is not the case, although it is for all other groups of offenders; that point is not completely clear.
Jeremy Wright: To pick up the last point first, I absolutely give the hon. Gentleman the assurance that he seeks. The national probation service will carry out a risk assessment of offenders released from short sentences, just as it will for those released from longer sentences, and allocation will be done according to that risk assessment, which means that high-risk offenders will be allocated management by the NPS. I do of course recognise the point that he seeks to make with the amendment, but I am afraid that I do not agree that the best way to deal with the situation is to go by category of offence, rather than risk of harm.
While the conviction offence may well be an indicator of an offender’s level of risk, it is by no means the only indicator. This is particularly important in cases where there is potential domestic violence. There is no specific offence of domestic abuse in statute, and often abusive behaviour becomes apparent through convictions for other types of offence. However, there will undoubtedly be cases in which an offender has not been convicted of a violent offence, or even an offence that in itself involves domestic violence, but probation professionals, police and other agencies have good reason to believe that he or she poses a risk of domestic violence. That category of offender is not captured by this amendment.
Instead, the amendment would sweep up significant numbers of low-risk offenders into the national probation service. Violent offence is not defined in the amendment, but in its current form it is so broadly drafted that it would arguably include offences such as common assault, which the CPS charging guideline says is the appropriate charge,
Does the hon. Gentleman believe that an offender convicted of common assault involving no injury, who has expressed remorse for their actions and who professionals in the NPS believe poses a very low risk of causing serious further harm should automatically be supervised by the NPS?
This underlines the point that in assessing risk, practitioners need to take account of a wide range of factors: not just the conviction offences, but also previous convictions, age and education, for example, and information from other sources. That is why it is so important that all offenders, whatever their offence, are subject to a risk screening or assessment by the NPS at the outset. As I have made clear, all offenders who are assessed as posing a high risk of serious harm will be allocated to the NPS. It is these professionals who are best placed to assess an individual offender’s circumstances and the level of harm that he or she poses.
The NPS will also be responsible for the management of all offenders who fall into being managed under the multi-agency public protection arrangement. This includes
Sarah Champion: I have been trying really hard to listen to the debate and I might have missed this. The Minister spoke about the subtleties of someone committing domestic violence and about people who commit sexual offences. It is because of those subtleties that I would like them to be recognised and placed within the probation trusts. The very fact that they have specific workers just dealing with those sorts of cases shows how specialist the work is. Did the Minister say that people who are convicted of sexual offences will automatically stay with the probation trusts? Or is there a way that people suspected of, or who have committed, those offences could be scored with an extra weighting, so that they would automatically go into the higher-risk sector?
Jeremy Wright: I understand the hon. Lady’s interest in these matters and I appreciate that she has expertise here. The proposal made by her hon. Friend is not to do with probation trusts: we are not currently having that argument again. We are talking about whether the national probation service should supervise these people, rather than community rehabilitation companies. In that, my argument is that the assessment of risk should be what determines that judgment, not which particular offence those individuals may have committed. That is my disagreement with her hon. Friend’s amendment.
As far as those with sexual offences are concerned, under our proposals if those individuals are assessed as high-risk, if they are subject to a MAPPA arrangement or if they are obliged to sign the sex offenders register they will be scrutinised by the national probation service. My contention is that the individuals who we should worry about and expect to be supervised by experts in the management of serious offenders will be managed by those people under our proposals.
The hon. Member for Hammersmith made the perfectly correct point, with which he knows I agree, that risk of serious harm is not static and can change. As he knows, we therefore designed a system that is responsive to significant change. As I set out before, at the point of allocation the NPS can specify case-specific circumstances which could, should they materialise, indicate a raised risk of serious harm and will require reference back of that case to the NPS for a review of risk level. Should new information come to light that indicates that the offender’s risk of serious harm may have increased to high, the CRC will be contractually obliged to refer the case to the NPS which, on the basis of the evidence provided, will form a view of whether the offender should now be transferred to it.
Both the allocation and risk escalation processes, which support the “Transforming Rehabilitation” reforms, will ensure that the NPS retains a central role in assessing the risk of serious harm posed by offenders convicted of sexual and violent offences and of deciding whether this risk of serious harm is such that the offender should be supervised by the NPS. Under these circumstances, I hope that the hon. Gentleman will withdraw his amendment.
‘(8A) Where the supervisor is an officer of a non-public sector provider of probation services the Secretary of State must—
(a) designate the provider as a “public authority”, as defined in section 3 of the Freedom of Information Act 2000;
(b) limit contractual arrangements with the provider for the provision of probation services to a maximum length of five years;
(c) prescribe key performance standards that the provider is required to meet in regulations to be laid before, and approved by resolution of, both Houses of Parliament;
(d) have the power to terminate the contractual arrangements at any time if the provider fails to meet the key performance standards;
(e) agree with the provider a percentage of the contract fee that must be returned to the Exchequer on the occasion that the provider fails to meet the key performance standards.’.—(Mr Slaughter.)
‘(8A) Supervisors may not be officers of any provider of probation services that is under investigation by a UK police force, the Serious Fraud Office or any other UK law enforcement agency.’.—(Mr Slaughter.)
‘(5) This section may not come into force until such a time as the Secretary of State has piloted the provisions in one or more probation trust areas, and has laid before Parliament an independent evaluation of the pilot.’.
‘(5) The Secretary of State must lay before both Houses of Parliament a report on the cost of implementing the provisions in this section after one year of it coming into force.’.
‘(1A) Section 3 comes into force in accordance with section 3(5).’.
Mr Slaughter: This group of amendments would deal with pre-implementation scrutiny of the Government’s proposals, which, as we have said, has so far been conspicuous by its absence. They propose an option for post-implementation scrutiny. Amendments 35 and 36 would provide that this section may not come into force until such time as the Secretary of State has piloted the proposals in one discrete area and commissioned an evaluation of the impact and performance. The obvious benefits of testing ideas to check how well they work have been well rehearsed in the Committee and I will not revisit them all in detail, although it seems the Government could still use the explanation. My right hon. Friend the Member for Wythenshawe and Sale East put it well earlier this week, when he said:
“If the Government want to proceed down their intended road, they should be piloting their scheme comprehensively in one part of the country to find out whether it works. If it worked, I would have to own up and say that while I had been sceptical, I now understood that this scheme would work and that I would support it. It is unfair of the Government simply to expect a blank cheque, however.”––[Official Report, Offender Rehabilitation Public Bill Committee, 26 November 2013; c. 60.]
The Government have called our efforts to get proper piloting agreed “frustrating and irresponsible.” I am not sure that I have heard asking for evidence-based policy described in quite that way before.
I remind Government Members once again that we are asking for no more than their own Government thought was right when they set up the pilots in Wales and the west midlands. The Minister’s predecessor, the hon. Member for Reigate (Mr Blunt), considered these pilots would be “ground-breaking” and a necessary opportunity to test ideas. Rather than the year’s worth of experience and information from these pilots that we should have available, we are instead being offered nothing but the Secretary of State’s inner beliefs. We remain of the view, and the amendments reflect this, that Governments should not roll out these ideas nationally until they have learned more about their genuine impact on a smaller, manageable scale.
I mention once again the contract for interpreting and translation, which has now been running for two years and which currently—I looked up the latest figures after the last sitting—is fulfilling 88.5% of its contract, which means that about 60 hearings every day face disruption. Almost 10,000 complaints were received between January 2012 and June 2013—39% because the contractor could not supply interpreters, 16% because the interpreter did not attend, 15% because they came late and 4%, the most serious, relating to the quality of interpreting. Moreover, in the second quarter of 2013, there were 23% more complaints than in the same period for 2012. That disastrous contract, which is now resulting in 7% of bookings being made outside the system, should of itself be a sufficient lesson to the Government—despite the Secretary of State’s willingness to “just go for it” on these occasions—to walk before they can run on these matters.
The idea of a blank cheque brings me to the last amendment in the group, amendment 52. It provides that the Secretary of State must report to Parliament on the cost of implementing the new supervision arrangement one year after the section comes into force. The Government are asking Members of Parliament to support the Bill without giving any indication of how much it will cost. Although they have done their best to suggest that the scrutiny of their wider proposals is not at all relevant to the Bill, the apparent intention is to pay for these provisions using the savings from the wider probation reforms, which are savings they do not know for sure they will make, because they have not tested the model.
“There will be a cost of providing rehabilitative services to offenders released from custodial sentences of less than 12 months…However, it would be inappropriate to release these costs, as they will be dependent on the outcome of competing offender services in the community.”
I hope that the Minister will reconsider how much information should be provided to colleagues on both sides of the Committee, to allow them to make an informed decision. If he is unable to make such a commitment—as
Jeremy Wright: I fear I shall disappoint the hon. Gentleman again, but let me deal first with amendments 35 and 36. They would require a pilot of clause 3, which creates top-up supervision, so that top-up supervision could not come into force before it had been piloted in one or more probation trusts. I do not propose to go through all the arguments on piloting, which we pursued extensively on Tuesday, but the Government do have a number of practical and detailed issues with these provisions, which mean we do not believe they are either necessary or in fact workable.
The amendment would not create a separate piloting provision. There would therefore be no power to impose top-up supervision on some but not all offenders in order to carry out the pilot in the first place. In addition, before top-up supervision could be piloted, it would be necessary to have introduced release on licence for short sentences under clause 2. It is unclear whether the intention of the pilot proposed is to have all short-sentence offenders subject to licence, but only some—depending, presumably, on where they reside—subject to top-up supervision.
A pilot would raise a number of further issues. It would complicate the law, making it unclear to the courts what will happen to the offender in any particular case. The courts have a legal duty to explain to the offender what the sentence is and what consequences will result if the offender does not comply. It would also be unclear to victims, witnesses and the public what would happen to that offender.
There are practical issues with the amendment. It is not clear how a geographical pilot would work when offenders are sentenced in one area, but supervised in another, or when an offender seeks to move residence between areas, in or out of the pilot area. The pilot under the amendment would also have to be carried out by a probation trust, taking no account of the fact that the law under the Offender Management Act 2007 allows, as discussed, for the dissolution of probation trusts which, as the hon. Gentleman knows, is the Government’s intention.
Even a publicly owned community rehabilitation company, therefore, would not be able to pilot top-up supervision. In turn, that would mean that top-up supervision could not be implemented. I may be unduly cynical, but I suspect that that is the real reason for the amendment. Despite the stated support of the hon. Gentleman for the extension of supervision, the amendment is designed to stop it happening. I hope therefore that he will reconsider the amendment.
I recognise the concern behind amendment 52, however. Although—as the Government set out in the impact assessment of the Bill—we have carried out analysis to model the potential costs of supervising offenders released from short custodial sentences based on what we know about the characteristics and offending needs of such offenders, it would not be appropriate to share it at this stage, because the way in which we will make the costs affordable is by competing the supervision of low and medium-risk offenders. If the Government were to release
The Official Journal of the European Union notice for the competition of low and medium-risk offenders, however, has made the indicative value of contracts by CPA area clear. I hope in due course that we can make further detail available in both Houses, but I will want to look in more detail at exactly what information we can provide. For example, top-up supervision will involve not only the cost of working with offenders, but the costs of breach sanctions.
On that point, I gently point out that the formulation of amendment 52 is not quite clear on what the Secretary of State would be required to publish. Is it only, for example, the cost of delivering supervision? Should it also include the cost of dealing with breaches, whether that is the cost to probation providers, courts or prisons? As I read it, the provision would require us to lay information exactly 12 months after commencement, when in fact the right time would be when there is 12 months’ worth of data.
I hope that the hon. Gentleman will agree that my questions are important to consider, because amendment 52 is not clear. The Government will of course want to assess the impact of the supervision provisions, in terms of cost and of effectiveness, but the amendment in this form is not the right approach to making that information available. I hope that he will withdraw it.
Mr Slaughter: Pesky details, indeed. I accept, however, the Minister’s assurance that he would like to supply as much financial information as he can. However, piloting is such an important issue in this area and there have been such disasters by going national on completely untried projects that I want to press amendment 35 to the vote.
‘(5) A supervisor may apply to the court for the supervision period to be discharged for good conduct provided that half of that supervision period has been completed.’.—(Mr Llwyd.)
(k) a mental health assessment requirement.’.
(k) literacy, numeracy and employment training.’.
‘(4A) An order under subsection (4) shall be made by statutory instrument.
(4B) A statutory instrument introduced under subsection (4A) shall be subject to approval by both Houses of Parliament.’.
Mr Slaughter: I will speak briefly to amendments 23 and 39. I know we are trying to make some progress. What I like is that my hon. Friend the Member for Darlington has written that into the script. She obviously knows us too well.
Part 1 of schedule 1 introduces the list of possible requirements that may be specified as part of an offender’s supervision arrangements following release from a short-term prison sentence. They include measures such as requiring an offender to keep in contact with a supervisor or attend drug appointments. Amendment 3 is a probing amendment to find out why the Government have not included a specific mental health requirement as part of the list and whether they might consider doing so. It provides that a mental health assessment requirement be added as an available supervision requirement.
It is widely recognised that mental health is a pressing concern for people entering the criminal justice system. The Bradley review published in 2009, led by Lord Bradley who spoke on this Bill in another place, reported comprehensively on this issue and highlighted the importance of diverting people away from the criminal justice system and into appropriate treatment.
The Government have made a welcome commitment to investing in liaison and diversion services in custody in order to identify and respond to mental health issues as early as possible in the system. I am sure the Minister would agree that where an offender has already received a short custodial sentence, supervision is then the next best opportunity to assess and respond to mental health needs and, where necessary, divert a person in time before the revolving door leads them back into custody. Could the Minister tell the Committee where the Government thinking is on this issue and whether he will consider the matter further? If he has time, I am sure the Committee would also appreciate a brief update on progress in the roll-out of liaison and diversion services.
Amendment 23 is a basic technical amendment. The schedule gives the Secretary of State the power to add or remove requirements from the list of possibilities given, as well as to amend or make instructions about the requirements. Amendment 39 would make any change to the list of options subject to the affirmative resolution procedure in both Houses. I am sure that the Minister will appreciate that the Secretary of State’s power to decide which of those options are available is quite wide-ranging.
We believe that it would be beneficial for any changes to be brought before Parliament, where the reasons and evidence for removing or adding an option can be clearly set out and agreed to. I would welcome the Minister’s thoughts on those suggestions. For the avoidance of doubt, I feel similarly about the amendment tabled by the right hon. Member for Dwyfor Meirionnydd, which would add an education, employability and training requirement to the list of possible supervision requirements.
Mr Llwyd: I am pleased to say that I can truncate my remarks because of what the hon. Member for Hammersmith has just said. I support amendments 3 and 39, and I think they contain a great deal of common sense.
I turn to amendment 23. Crimes committed by the under-12 cohort tend to be acquisitive theft and handling stolen goods. A fair number of crimes involve the selling of drugs, less serious violence against the person, a small number of sexual offences, and burglaries and robberies. The number of burglars among those in the medium and low-risk category of offenders was nearly 16,000, and nearly 30,000 people in that group were convicted of violence against the person. That is on the lower end of the scale, for obvious reasons.
One has to ask who those offenders are. They are not a compliant group of economically healthy individuals who are free from social problems; they characteristically have multiple problems and factors of disadvantage. According to the Bromley briefings produced by the Prison Reform Trust, the chance of such an offender having been taken into care is 27%, which compares
The schedule contains a range of programmes that an offender can be required to attend, all of which are aimed at improving his or her chances of being rehabilitated, being educated and eventually, we hope, finding work. There is no condition that an offender must attend a literacy or numeracy class, however. Given that according to staff, the majority of short-term prisoners are illiterate and are abusing drugs, alcohol or both, it is essential that those conditions are addressed. The hon. Member for Hammersmith has partly addressed the question of mental health, which is allied to alcohol abuse. There is provision for attending drug abuse programmes, which is an excellent move, but before an offender can be deemed fit to take part in a pathway to work programme, surely we must deal with the terrible problems of lack of literacy and numeracy.
Schemes such as the excellent Toe by Toe initiative, in which former offenders mentor individuals who have low levels of literacy and numeracy, have been carried out in prisons with great success. The success of the Toe by Toe initiative is, no doubt, due in part to the fact that offenders are likely to identify with a former offender who has found their life of crime to be the wrong pathway and worked their way out of it. A provider of probation services—the hope is that they will be supervised by the public sector, but I will not go into that again—may well be able to contract in services from agencies such as Toe by Toe, which is desperate to work with the community to help offenders to break the cycle of needless, soul-destroying crime.
The Minister will say that the amendment is otiose, to use the time-honoured word that is used only in Parliament as far as I can tell. The point he may well also make is that the list is not exhaustive. That may well be, but—and with the greatest respect—this is an important omission from that list. I urge him, even at this late stage, to accept the amendment.
Jeremy Wright: I shall begin with amendment 3. As the hon. Member for Hammersmith said, the amendment would add to the list in schedule 1 a mental health assessment requirement. As he knows, the same assessment was debated during the Committee consideration in the other place.
The Government’s concerns about the amendment have not changed and I will set out the practical issues we have with it, but first let me acknowledge the importance of identifying and addressing the mental health needs of offenders, as he says. We do need to ensure that offenders with mental health issues do not fall through the net. We know that many offenders have mental health issues, sometimes related to offending and sometimes not.
Providing appropriate intervention and treatment at the right time and in the right place is vital to improving outcomes for people with a mental disorder. The crucial issue is that any assessment should be done at the
Prisoners identified with a mental health problem after the initial screening are referred for a mental health assessment. It makes little sense, therefore, to introduce an assessment at the very end of the process, as the amendment would do, with top-up supervision.
Our “Transforming Rehabilitation” proposals include a through-the-gate service where providers will engage with offenders before release, and help them to resettle into their communities. The partnership agreement, which the hon. Gentleman will know, between NOMS and NHS England includes an undertaking to work together to support continuity of care. NHS England, which commissions health care, including mental health in prisons, is responsible for ensuring that all prisoners are registered with a GP in the area they will be released to, as well as the transfer of health care records. Providers will be able to support the offender to access the services they need as they return to their communities.
The introduction of resettlement prisons and through-the-gate services, as well as statutory supervision for all prison leavers, will also support better transition from care in custody to care in the community. That is important because probation providers themselves cannot ensure that professional mental health assessments take place, or compel offenders to be assessed. If they are concerned about an offender’s mental state, registration with a GP means that they could recommend that an offender seeks help from his or her GP who would be able, if appropriate, to make any necessary referral.
NHS England’s mandate also commits it to developing better health care services for offenders and people in the criminal justice system that are integrated between custody and community. I would expect providers to support offenders to address any mental health treatment needs as a priority. Engaging with the offender before release means that providers can seek to ensure that provision is available with the help of health practitioners immediately upon release on licence, for the offender to be supported into continuing treatment in the community.
There are, I am afraid, some technical issues with the amendment but I know that the hon. Member for Hammersmith hates it when I dwell on those. I will try not to do so for too long. However, they include whether it is intended to have people assessed without their consent. That matter has a number of problems that he will be able to anticipate. That is a situation much better dealt with by the Mental Health Act 2007 rather than the Bill. It is also not clear how the provision would interact with the well established process for making assessments of mental health under the Mental Health Act, especially when a person does not consent to that assessment.
I do not believe that the amendment is necessary and I fear it may not be practical. There is also a danger that it could be seen as a way to shift the responsibility for addressing mental health issues to someone else further down the line. Neither the hon. Gentleman nor I would want that. However, I hope he is reassured by our commitment to address these issues in the criminal justice system.
I shall now turn to amendment 23 from the right hon. Member for Dwyfor Meirionnydd. He says it would add to the list of requirements what I assume to be a requirement to attend literacy, numeracy or employment training. I entirely agree with the sentiment behind the amendment. It is clearly important that we address these issues as a significant contribution to the rehabilitation of offenders. As he says, literacy and numeracy are key skills in obtaining employment, and gaining employment is one of the best ways that we know to prevent a return to crime. I also agree entirely with what he said about the Toe by Toe project, which is a fine example of its kind and does a great deal of excellent work.
Either by that route or by others, many offenders receive education and training in prison. Sometimes it is the first time that they have attended and achieved any progress or qualifications. The introduction of licence and supervision for those serving short sentences in the Bill, and the other reforms that we are making, will enable that work to continue in the community.
As the right hon. Gentleman predicted, though, I do not think it necessary to make the additions proposed by the amendment to the list of conditions. That is not so much because the list is exhaustive as because attendance at education or training programmes is already covered in licence conditions and the new top-up supervision by condition H in schedule 1, which is the requirement to participate in activities in accordance with any instructions given by the supervisor. It seems clear to me that that requirement already allows for tailored education and training activities. The condition will be crucial to allowing the providers of probation services to develop new programmes and activities to help rehabilitate offenders. I hope that with that clarification, the right hon. Gentleman will withdraw his amendment.
The last amendment in the group, amendment 39, is an entirely straightforward amendment that would require any order from the Secretary of State to change the list of conditions that can be imposed as part of top-up supervision to be subject to affirmative resolutions of both Houses. I have good news on that for the hon. Member for Hammersmith. I can curtail my comments and hopefully be helpful to him simply by pointing out that such a provision already exists in the Bill. Paragraph 16 of schedule 3 to the Bill amends section 330(5a) of the Criminal Justice Act 2003 to add to the list of provisions subject to the affirmative resolution procedure an order under section 256AB(4), which he will of course know is an order to vary the top-up supervision conditions. I hope that with that clarification, he will be content to withdraw his amendment.
Mr Slaughter: I just set that to see if the Minister was still awake. I appreciate his comments on those matters. We think—I am sure that the right hon. Member for Dwyfor Meirionnydd would say the same—that they are important, but I will not press them to a vote. I beg to ask leave to withdraw the amendment.
‘(a) the Secretary of State is satisfied of the matters in subsection (2A),’.
‘(c) the drug test must be administered by a professionally qualified practitioner.’.
Jeremy Wright: Government amendments 8, 9, 16 and 17 make certain changes to drug testing after release from custody. It might help the Committee if I start by explaining briefly the existing provisions on drug testing in the Bill. Currently, section 64 of the Criminal Justice and Court Services Act 2000 allows for offenders released on licence to be required to submit to compulsory testing for specified class A drugs where the offender’s conviction offence is on a trigger list. Trigger offences are those crimes most likely to be linked to misuse of drugs and include theft and fraud offences as well as drugs offences.
The current clause 12 expands that existing power to include class B drugs. Schedule 1, which creates the various requirements that can be imposed under a top-up supervision period following licence, provides for an equivalent class A and B testing power for top-up supervision. The supervision requirement replicates the existing trigger list in place for testing under licence. The condition imposed under the requirements is that the offender attends a specified place as and when required by their supervisor to give a sample for drug testing. Positive drug tests can be used by those working with the offender to determine their likely progress with treatment in order to support rehabilitation. They can also be used to support an assessment of the offender’s compliance with the good behaviour licence condition.
Since the Bill’s introduction in May this year, I have considered in more detail the evidence on drug use by prisoners. It suggests, as one might expect, that there is a strong correlation between prisoners who report using class A or B drugs before sentence and those who go on to reoffend, but it also suggests that using the trigger offence as a filter omits about half of all prisoners who are class A users and a majority of those who are class B users. In other words, that could lead to scenarios where a prison governor imposing licence and supervision conditions might consider it appropriate to allow for testing an offender whose drug abuse is linked to their offending, but would not be able to do so. It means that where an offence is not on the trigger list but is linked to the offender’s use of illegal drugs, there is no power to require the offender to take drug tests where that would support their rehabilitation. Similarly, in a scenario where a persistent offender abusing drugs commits an offence that, this time, happens not to be on the trigger list, there is no testing power after they are released from custody.
What these amendments would do is replace the trigger offence threshold with a new two-limbed test. The first part would be whether the offender has a propensity to misuse specified class A or class B drugs and the second part, whether the misuse by the offender of any specified class A or class B drug caused or contributed to any offence of which he has been convicted,
It may help if I also say something about how the testing requirements are, in practice, imposed. The power to set the condition for both licence and supervision conditions sits with the Secretary of State. In practice, that is and will continue to be delegated to prison governors, who already set licence conditions at the point of release for offenders released from sentences of 12 months or more. The power to impose that will not be delegated to private or voluntary sector probation providers, although they and the national probation service will be able to recommend a drug testing requirement as part of their assessment of offenders before release, in line with other licence conditions, just as probation trusts do now.
Governors already receive, and will continue to receive, national guidance on imposing testing conditions through prison service instructions. We will be issuing revised PSIs once the “Transforming Rehabilitation” operating model takes effect, and will provide detailed instructions to governors on the use of the testing condition as we do now. In the future, the move to a through-the-gate system will support governors in targeting testing conditions on those for whom they are appropriate. Prison staff will complete an initial needs screening when an offender arrives in custody and providers will have access to that to carry out a more detailed assessment and develop a resettlement plan for the offender. That will include an assessment of whether an offender has a dependency on drugs, of whether and how their dependency relates to their offending and of whether testing after release is likely to support compliance with their other licence conditions, engagement with treatment where appropriate and staying away from offending.
I will also deal briefly with amendment 18, which is a minor and technical change to the Bill’s drug appointment provision. Clause 13 will add new section 64A to the Criminal Justice and Court Services Act 2000. Proposed new section 64A(3) currently reads:
That is intended to refer to the conditions to which an offender’s release is subject—in other words, the conditions that apply during any period of supervision at any time after their release. However, it could mistakenly be read as referring only to the conditions set at the time of release. That is not the intention. The amendment clarifies the clause accordingly.
Finally, I will deal with amendment 24. That raises the important issue of the quality of drug testing. I am grateful to the right hon. Member for Dwyfor Meirionnydd for raising that—although, come to think of it, I do not think that he spoke to it. In that case, I seek your guidance, Ms Dorries, as to whether I should respond.
Jeremy Wright: I will try to deal with amendment 24 and then, if perhaps the right hon. Gentleman disagrees with what I say, he can say so. The amendment, I believe, raises the important issue of the quality of drug testing. I know that he will explain what the amendment does, but it relates to the application of testing conditions for class A and B drugs during the licence and top-up supervision periods.
Drug testing, both compulsory and voluntary, takes place in many parts of society, as the right hon. Gentleman knows, and is administered by many types of professional. The administering of a drug test that entails taking samples of oral fluids, swabs or urine rather than blood does not require medical or scientific qualifications or experience; it is a manual exercise carried out through the use of approved testing kits. If that were not the case, drug testing would not be able to be carried out in a number of environments, for example by the police in the course of an investigation into drug-driving, or as part of the programmes of drug testing at work carried out by some employers. I am not aware of any requirement for people carrying out those tests to be qualified, either medically or scientifically.
Furthermore, interpretation of the results is not to be left to the probation provider. Either the kit itself will provide an instant result, which will be read by a probation officer who has been trained to do so, or the completed test will be analysed by an accredited laboratory, which will provide the result. For drug-testing kits that are read by a probation officer, the result is no more difficult to determine than determining whether a line has appeared on a test card. It does not require a medical qualification. As for laboratory results, the laboratories used are accredited by the United Kingdom Accreditation Service.
Moving responsibility for testing to a medical practitioner, as suggested by the amendment, would not therefore bring any benefit but would bring many complications. Part of the rationale for the drugs-testing condition is that testing can be administered by the probation officer at any time, without warning, when they wish to know whether an offender has been taking drugs. To that end, testing can be done at random intervals, to militate against the opportunity for offenders purposely to avoid a positive result.
Involving a medical practitioner in administering the test would not only build in delay, during which drugs may leave a person’s system or become less easily detectable, but, given the need for an appointment with a practitioner for the test to take place, would also give an offender advance warning as to when any test might take place.
Mr Llwyd: In that case, I am comfortable with what the Minister has said. I would take slight issue with him about the purport of what I was trying to bring in with amendment 24. It would not necessarily be an
Mr Slaughter: I have no point to make about amendment 24. On the Government amendments, I thank the Minister for the information he has given. We welcome the Government’s intention to try to improve the offer of support and services to offenders who are affected by drug use. It is a significant issue in prisons, as the Oakwood report recently reminded us, and a significant driver of crime. Drug use is particularly high among the most prolific group of offenders who tend to serve short sentences, so it is welcome that the Government are looking at ways to combat it.
That said, some concern has been expressed about the detail of the plans. DrugScope, a respected charity in this area, has reported its concern that testing for lower-level drugs may not be value for money, as they do not tend to have the same link to offending behaviour as class A substances. DrugScope refers to a 2008 UK Drug Policy Commission report that said:
The Government’s impact assessment notes that the provisions will come with associated costs, which are estimated at £1 million. What monitoring of the costs and impact, successful or not, is the Department planning? Will the Minister make plans to share that monetary information with Members, so that we can judge the cost-effectiveness and value of the scheme?
The other prevalent concern is whether the necessary services are available to support the introduction of drug appointments requirements and orders. Since the short-sighted abolition of the National Treatment Agency for Substance Misuse, drug treatment services are now competing for the heavily pressured budgets of directors of public health. There is no guarantee of what the provision of services will look like across different regions. What consideration has the Minister made of the services needed to implement the available drug appointment provisions? What efforts are the Government making to ensure that the appropriate provision is in place?
Jeremy Wright: In relation to the point that the right hon. Member for Dwyfor Meirionnydd raised, as I said, the current practice relates to drug tests that involve samples of urine or saliva and not of blood. Were we to want to pursue blood tests, we would require the necessary qualifications and training for the taking of blood. I hope that sets his mind at rest.
On the point made by the hon. Member for Hammersmith, we have made it clear that only if an appointment is available could that requirement be made. There would first have to have been an assessment that a suitable appointment could be taken before the requirement could be made. I hope that sets his mind at rest.
‘(2A) Those matters are—
(a) that the misuse by the offender of a specified class A drug or a specified class B drug caused or contributed to an offence of which the offender has been convicted or is likely to cause or contribute to the commission of further offences by the offender, and
(b) that the offender is dependent on, or has a propensity to misuse, a specified class A drug or a specified class B drug.’.—(Jeremy Wright.)
(d) restate the requirements with which the offender must comply and warn the offender of the consequences if he fails on a further occasion to comply with any of the requirements of the order.’.
Mr Llwyd: I shall attempt to be brief. The amendment would remove the sanction of imprisonment for a breach of post-release supervision. I am indebted to the Prison Reform Trust for its persistence on the amendment, which it was keen to see discussed.
The Bill introduces a new licence period for short-sentenced prisoners and deals with the new supervision period that follows that time on licence. It extends the time on supervision to 12 months for all short-sentenced prisoners. The amendment would help to ensure that the purpose of the new supervision period is primarily rehabilitative, by removing custody as a sanction for technical breach of requirements. It would retain the sanctions available to the courts of imposing a fine or a supervision default order that imposes either an unpaid work requirement or a curfew requirement. The option of recall to custody for breach of conditions during the licence period is unaffected.
The Prison Reform Trust is particularly concerned that, without additional safeguards, the proposals will result in an increase in breach and recall to custody, which will drive up the short-sentenced prison population. As the “Transforming Rehabilitation” consultation acknowledges, many people serving short prison sentences have complex and multiple needs, including homelessness, unemployment, drug and alcohol addictions, mental health needs and learning disabilities. That in turn increases the likelihood of breach and recall to custody if sanctions imposed for non-compliance are too onerous or the period on licence or supervision is too long.
“We propose to adopt a range of sanctions to address non-compliance with supervision, only recalling offenders to custody
“This does not, however, appear on the face of the Bill, leading to concern that the Bill will result in breaches of the principle of proportionality, by leading too easily to the use of imprisonment as a sanction in relation to conduct which is not criminal.”
The Committee also pointed out an anomaly between the Government’s stated intention and their calculations in the revised impact assessment, with 70% of people who breach their supervision requirement estimated to be sentenced to further custody for 14 days. The Committee concludes:
The impact assessment estimates that an additional 13,000 people will be recalled or committed to custody, giving a prison place increase of around 600, as I said earlier in the discussion, at a cost of £16 million per annum. In addition, there will be
“around 3,000 offenders given electronically monitored curfews, at a cost of £2 million per year, and around 1,000 offenders given unpaid work, at a cost of less than £1 million per year. There would be around 14,000 offenders returned to court at a cost of £6 million per year. This gives a best estimate of the cost of breach for offenders released after serving custodial sentences of less than 12 months of £24 million per year.”
By limiting custody as an option for breach, the amendment would help to reduce the significant costs of extending statutory supervision to short-sentenced prisoners—another element of the costs exercise that no doubt we might consider.
A rise in the number of recalls has been identified by the Ministry of Justice as a key driver in the growth of the prison population over the last two decades. The recall population has grown rapidly since 1993, increasing by over 55 times. It increased by 5,300 between 1993 and 2012. Growth in the recall population began in 1999, reflecting the change in the law in 1998 which extended executive recalls to medium-term sentences, which means those of 12 months to less than four years.
It seems to me that there is significant risk that extending recall to custody as an option for breach of supervision requirements could have a similar impact on the short-sentenced prison population. That would be counterproductive to the rehabilitative aims of the proposal, given the poor record of prison at reducing reoffending, particularly by short-sentenced prisoners. Reoffending by offenders sentenced to less than 12 months in prison is estimated to cost the economy up to £10 billion per annum. Some 58.5% of prisoners sentenced to 12 months or less reoffend within one year of release. For those who have served more than 11 previous custodial sentences, the rate of reoffending rises to 69%. That is the gist of amendment 42.
Amendment 41would give courts the power to give warnings to offenders who have breached supervision requirements at the end of the sentence. I do not propose that to be a soft option in any way. It is part and parcel of the debate about the way in which some American courts that I have seen are now dealing with such
Subsection (4) outlines the options available to the court if a person has failed without reasonable excuse to comply with a supervision requirement. Currently, the effect is that if a court finds that an offender has breached their supervision requirement without reasonable excuse, it may order the person to be committed to prison for a period not exceeding 14 days, order the person to pay a fine, or impose a new supervision default order with the option of either an unpaid work requirement or a curfew requirement. The amendment provides sentencers with an additional, and what can be a robust, option in response to breach, while retaining necessary flexibility. It recognises that a return to court can of itself prove a sufficiently salutary experience in many cases, and ensures that the person fully understands the requirements and the consequences of non-compliance.
For many people with a mental health need or learning disability, making an order more onerous may simply set them up to fail and increase the likelihood of further breach. In some cases, fines could increase the financial pressure on offenders who are struggling financially and increase the risk of further offences of theft, burglary or robbery to obtain money. The Government’s impact assessment estimates that of those who serve sentences of less than 12 months and are therefore subject to the new supervision requirement, an additional 13,000 will be recalled.
In their response to the “Transforming Rehabilitation” consultation, the Government said that they propose to adopt a range of sanctions to address non-compliance with supervision requirements, recalling offenders to custody only as a final measure. However, I again refer to the Joint Committee on Human Rights, which said:
“This does not, however, appear on the face of the Bill, leading to concern that the Bill will result in breaches of the principle of proportionality, by leading too easily to the use of imprisonment as a sanction in relation to conduct which is not criminal.”
The intention is to introduce not a soft option, but another option. I am not saying that it will be used routinely every day, but in some cases it would be helpful to do so because when some people appear in court, that is, as practitioners here will know, enough to scare them away from further criminality, despite a technical breach or whatever it might be. The amendment would strengthen the arm of sentencers and give them further latitude to work with people. It would be a useful addition to the Bill.
Jeremy Wright: The purpose of amendments 42 and 41, as the right hon. Gentleman explained, is to reduce the sanctions available to the court to deal with breaches of top-up supervision. Unlike breach of licence conditions, consideration of a breach of top-up supervision will be a matter, as he knows, for the magistrates court. Dealing with breach of supervision conditions will indeed be an important new role for district judges and lay justices. As we have discussed, the court will have wide discretion
Clause 4 gives the court three sanctions if there is a proven breach: a fine of up to £1,000; a supervision default order, which provides a further choice of two sanctions—unpaid work or an electronically monitored curfew; or the court can commit an offender to custody for up to 14 days. There must be a balance between the need to ensure that offenders comply with conditions and the need to ensure that rehabilitation remains the primary focus of the supervision.
The options provide a sanction for failure without reasonable excuse to comply with supervision conditions. However, the sanctions are limited and will have to be applied proportionately. Again, I stress the point that I made earlier today that, because a range of options is available to the court, it does not follow that in every case it will decide that it is appropriate to resort to a custodial option. As the right hon. Gentleman would expect, the Government are in discussion with the independent Sentencing Council about producing guidelines for magistrates on what appropriate sanctions might be for particular types or levels of breach.
We recognise that there will be a variety of circumstances in which offenders will breach their conditions of supervision, and it is worth noting that some offenders will do so in a way that merits committal to custody, even for a short period. We believe that we must trust magistrates to make the right decision in such cases. Only they will be able to look at the full facts of the case and decide the best way to ensure that the offender complies with their supervision conditions.
We are providing a range of sanctions, but they are limited in what they impose on the offender precisely because we are trying to get the right balance between ensuring compliance and maintaining the original focus on rehabilitation. I understand what the right hon. Gentleman is seeking to do in amendment 41, but I suggest that the Bill already allows the court to choose not to impose a sanction if there is a breach.
‘(9A) The Secretary of State must make an annual report to Parliament on the number of breaches of a supervision requirement recorded in the preceding year, the reasons recorded for an offender’s failure to comply in each case, and the outcome in each case including details of any order imposed on the offender by a magistrates’ court.’.
‘The Secretary of State must publish an annual report which must include details of the impact of new measures on the reconviction rates of offenders supervised by providers of probation services and as a consequence of participating in any programme or intervention.’.
‘The Secretary of State must annually publish the number of mental health treatment requirements, as defined in section 208 of the Criminal Justice Act 2003, imposed as part of a community order or suspended sentence order by each court in England and Wales.’.
This is the last matter that I will address today. Clause 4 is important because it provides for breach arrangements. Amendment 32 is a simple provision that would ensure that Parliament is kept up to date about how the proposals are working in practice. It would place a duty on the Secretary of State to report annually to Parliament on the numbers and details of breaches of supervision requirements. New clause 3 would require the Secretary of State to report on the number of offenders recalled to custody. Those important safeguards would ensure that the impact of the new system is properly monitored.
We dealt with the figures during our debate on a previous group of amendments. There will be 600 additional places in prison, at a cost of £16 million per year, and 13,000 offenders will be recalled to custody. A report would enable Members to monitor how well the proposals are operating in reality. They would be able to see whether certain sanctions are underused or overused and how the scheme has affected the prison population. The Secretary of State would have to report to Parliament on the cost of the measures and on whether the provisions have disproportionately affected any particular groups of offenders. For example, the majority of female offenders will be eligible for supervision because they tend to serve short custodial sentences. If breach provisions lead to a particularly high increase in the female prison population, that should be reported so steps can be considered and action can be taken.
Such monitoring is an important tool for testing providers’ performance. If one provider has a staggeringly high breach rate, Members should be provided with that information so questions can be asked about how well that provider is managing its case load. That would enable Members to consider whether some supervision requirements have proved more effective than others, and whether any should be re-considered.
The Secretary of State scrapped the previous Government’s prison building programme and closed down a number of local, often well performing prisons, so we are facing a crisis in prison numbers. Last week, the prison population was more than 85,000 and there is a usable operational capacity of only 900 more places. Therefore, the additional 600 places is significant. The Secretary of State has planned more prison closures and the Government have not indicated how they plan to deal with the increase in prison places that is needed. A report would be an excellent means of enabling Members to judge the Government and their policies.
On a related note, the Magistrates’ Association said that it was concerned that the new supervision and probation arrangements may result in up-tariffing and an increased use of custody over community sentences. The Government’s impact assessment also notes that risk. Community sentences, if used appropriately, have a better reoffending rate than short-term prison sentences. Will the Minister inform the Committee whether the Government have any plans to monitor how the use of community sentences will be affected by the proposed changes?
New clause 4 has been selected with this group because it would also require the Secretary of State to publish an annual report, although on a different matter. The latter clauses of the Bill deal with requirements available in community and suspended sentences orders. New clause 4 would place a duty on the Secretary of State to report to Parliament on the use of mental health treatment requirements, which are already available.
We have already had a discussion today about the prevalence of mental health problems in the criminal justice system and the importance of diversion and appropriate treatment for preventing reoffending. Despite the scale of the issue, mental health treatment requirements still represent less than 1% of all requirements in community orders. The Centre for Mental Health identified a number of barriers to the use of the requirement, including the lack of services available for courts to send offenders to. It recommended increased monitoring of the use of the order, and partnerships between local court services and health commissioners to agree a protocol on provision of services and advice to the courts.
New clause 4 would require the Secretary of State to publish annually the number of mental health treatment requirements imposed as part of a community order or suspended sentence order by each court in England and Wales. That would highlight the issues by area and ensure that progress in each year was checked.
Does the Minister agree that that requirement is an important tool that is currently being underused, and will he update the Committee on what efforts the Government are undertaking to improve the uptake of the requirement? I look forward to hearing his response on those points.
For the avoidance of doubt, and not just because of the hour, as regards schedule 2 and the other clauses that we intended to cover today, in so far as there was anything to say on those—for example, in relation to young offenders after release—that has already been dealt with in previous debates and I will have no further comment to make on those provisions.
Jeremy Wright: The common theme uniting all these amendments is that they require the Secretary of State to publish various types of statistical information. I recognise the spirit in which they have been tabled, and I have no doubt that the commitment to make the criminal justice system more transparent is one with which we all agree. I hope I can reassure the Committee by saying that the statistics mentioned in each of these amendments are either already published or will be published in future, and I reiterate the Government’s commitment to ensuring that the outcomes achieved by organisations working with offenders are transparent to both Parliament and the public.
I should say first that there is already a statutory duty in section 95 of the Criminal Justice Act 1991 requiring the Secretary of State every year to publish such information as he considers expedient on a range of topics, including information allowing those working in the justice system to become aware of the financial implications of their decisions and information allowing them to understand the effectiveness of different sentences in preventing reoffending. In accordance with this duty, every quarter the Ministry of Justice already publishes proven reoffending statistics, which split reoffending rates by age group, gender, criminal history and offence type for different types of sentence and for individual prisons and probation trusts. The information also includes annual reoffending rates for drug misusing and for prolific and other priority offenders, and reoffending rates at local authority and community safety partnership level.
This is a National Statistics publication and is therefore subject to the appropriate checks and safeguards. As we move to a set of new probation organisations with new boundaries, we will of course reflect those changes in the breakdown of the reoffending rates that the publication gives, so it will be possible to see the impact that each organisation working with offenders is having in its area. The Ministry of Justice also publishes the annual compendium of reoffending statistics and analysis to compare the effectiveness of different types and lengths of sentences. This work compares like-for-like offenders, which enables a more reliable comparison of proven reoffending rates between offenders receiving different sentences. I hope that gives some reassurance about the first limb of new clause 3.
On the second limb of new clause 3, the Ministry of Justice regularly publishes evaluations and evidence summaries on the impact of different programmes and interventions. For example, in October last year we published a detailed study that explored the impact of different community order requirements on the reoffending rate and the frequency of reoffending within two years of the initial offence. More recently, the Department published a summary of evidence on reducing reoffending, which reviews the academic literature on an extensive range of interventions with offenders. I commend that review to members of the Committee.
I also draw the Committee’s attention to the innovative justice data lab that the Department has launched. This provides organisations working with offenders with the one-year proven reoffending rate for that group, together with the rate for a matched control group of similar offenders. It will be vital in helping the many smaller groups that we all see working with offenders in our constituencies to demonstrate the value of their work.
On amendment 32 and new clause 4, the Ministry of Justice already publishes quarterly offender management statistics, which again is a National Statistics publication. These statistics already include licence recall statistics. We want to ensure that in future this includes recalls of prisoners released from sentences of less than 12 months and committals to custody for those proven to have breached a supervision requirement. That publication also already includes the number of offenders starting mental health treatment requirements as part of a community order or suspended sentence order.
I hope that the hon. Member for Hammersmith will be reassured by that explanation, which I hope makes clear the Government’s commitment to being transparent
Mr Llwyd: I want to ask the Minister one simple question. I am encouraged by what he has said, but is there anything in new clause 3 that could not be provided? In other words, is all the information available? From what he has said, I think it is, and the new clause would just make it a matter of collating all the information into one report. Would that be a fair summary? The new clause would require
“an annual report which must include details of the impact of new measures on the reconviction rates of offenders supervised by providers of probation services and as a consequence of participating in any programme or intervention.”
Jeremy Wright: I have set out for the right hon. Gentleman what is published. Perhaps, to be on the safe side, I had better go away and look again at new clause 3, just to make absolutely certain that I can give him a clear assurance. If he will allow me to do that, I will. As I have set out, a good deal of information is already released. I think it covers all that the right hon. Gentleman is concerned about, but let me make absolutely certain and come back to him.
Jeremy Wright: Again, we would want to refer the right hon. Gentleman back to what is already published. If there is a much more helpful way of synthesising it, we will of course look at that. We believe that the current methods for disclosing the information are the right ones, but I will look at what he is saying.
(c) a provider of probation services must ensure that any matter regarding breach or an amendment to supervision after the end of sentence is referred to an enforcement officer immediately following discovery of an allegation of breach or any need to award the supervision order.’.
‘(8A) The court must be satisfied when discharging an order for good progress that the offender has complied with all requirements and not been charged with any subsequent offence.’.
Amendment 26 also speaks for itself. Its point is that speed is of the essence when there has been a breach. That is patently obvious—it is better for the offender, better for those supervising and better for the court as well. Amendment 26’s other point, about which I feel quite strongly, relates to the fact that when someone is brought to court for an alleged breach, there is a right of appeal. That is perfectly right and proper, and is specified in the Bill. My point is that it is not inconceivable that there might be a difficult chemistry between the supervisor and the supervised. That is not unknown—it has happened in the past and it will happen in future. I want to guard against a person being breached because a supervisor feels that they cannot be bothered with him or her and cannot get on with them, and so breaches them in order to wash their hands of them.
I understand that the allegation would go to a probation officer, who would be the enforcement officer. However, there will be cases where the court wonders whether it has heard enough to be sure that there has been a breach, with all its attendant consequences. All I am suggesting is that, on the belt-and-braces principle, there should be, on the rare occasions when that might happen, the right for a court to call a supervisor to give evidence. If the individual before the court for the alleged breach says that the supervisor did or did not do something—for example, that they had misled them in some way, not contacted him or her in adequate time for an appointment, or whatever it might be—and if the court feels it is perhaps not hearing the full story, as it always should, it should be able to call the supervisor to give oral evidence in the presence of the person being breached.
That would be a reasonable provision, and I feel sure the courts would accept it. It would not add any delay—in fact, quite the reverse—and it would ensure fairness.
Jeremy Wright: First, let me deal with amendment 29, which, as the right hon. Member for Dwyfor Meirionnydd says, would require a provider of probation services, be it the public or private sector provider, to report any alleged breach of supervision conditions to an enforcement officer immediately the alleged breach comes to light. It also requires the provider of probation services to refer any amendment of supervision conditions to the enforcement officer as soon as possible.
I welcome the desire to ensure that enforcement of supervision conditions is timely. I would, however, point out that for alleged breaches of community orders,
I will not go into the details of the proposed contractual terms for providers under our reforms, but I can assure the right hon. Gentleman that the contracts will include requirements and minimum standards in relation to enforcement of supervision conditions. There are clear financial implications for providers if they do not meet the contractual terms. That seems to us to be a more effective way of ensuring the reporting of breaches is prompt than a statutory duty that has no sanctions for non-compliance. We will return to the issue when we debate the right hon. Gentleman’s amendments 27 and 28, which relate to schedule 4 of the Bill.
If the right hon. Gentleman’s concern was to ensure that the function of initiating and presenting court proceedings for breach of a supervision requirement is reserved to the public sector, I can reassure him that it is unnecessary. As I said at our first sitting, the function of giving assistance to a court is expressly reserved to the public sector under section 4 of the Offender Management Act, and therefore any contract that purported to give private providers a power to present breach proceedings at court would be ultra vires.
With regard to amendments to supervision conditions, I point out that supervision conditions are set by the Secretary of State or those able to act on his behalf. As such, any change to the conditions must also be made by a representative of the Secretary of State—at present, a prison governor. We discussed the matter a little earlier today. A private provider cannot therefore act to vary conditions by itself and would not enforce a new or varied condition that had not been approved by the Secretary of State.
It is therefore in the interests of providers to seek a timely variation in conditions, especially if they believe the offender would benefit from additional conditions to avoid their re-offending or where there is a danger of the offender being unable to comply with conditions owing to a change in circumstances.
Amendment 26 would allow a court to call a supervisor to give evidence at a breach hearing. Again, I assume that that is meant to apply to private sector providers and to all hearings for breach of supervision conditions. In response, I simply want to make it clear that it will be for the national probation service to lay information before the court in order that the court can decide whether there has been a breach of a condition.
If the public sector national probation service is not satisfied that there has been a breach of supervision without reasonable excuse, it would not seek to lay the information before the court. It may require the provider to produce more evidence to present to the court. In this way, before the public sector brings breach action to court, it should have satisfied itself that the evidence of breach from the providers is robust and legal. That said, there is nothing in the current process or existing law that stops a court from seeking the best evidence available, including evidence direct from the provider. There will also be provision in contracts to require providers to support the breach process, including providing evidence
Jeremy Wright: This group of amendments are minor and technical amendments linked to clause 6. I am grateful to the hon. Member for Hammersmith for indicating that he does not regard them as controversial, but I will set out briefly what they will do.
Clause 6 is about consecutive sentences, in particular how to calculate supervision periods when an offender is subject to more than one type of custodial sentence at a time. As it stands, the clause will amend the Criminal Justice Act 2003 to add new section 264A. We have subsequently spotted that there used to be a section 264A of the 2003 Act, which has since been repealed. It is not good practice to insert new sections into an Act that have the same number as a repealed provision, as there is a risk of the repealed provision being confused with the new one. Amendments 10, 11, 12 and 14 will therefore renumber the proposed new section as section 264B.
Amendment 13 picks up on missed consequential amendments that flow from clause 6 to two sections of the 2003 Act: section 249, which governs the length of a licence period; and section 250, which governs the conditions imposed under licence.
‘Before section 265 (and the italic heading before it)’.
‘( ) In section 249(3) (duration of licence)—
(a) for “sections” substitute “section”, and
(b) for “and 264(3)” substitute “and sections 264(3C)(a) and 264B”.
( ) In section 250 (licence conditions), omit subsection (7).’.—(Jeremy Wright.)
‘Crime (Sentences) Act 1997 (c. 43)
A1 Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) is amended as follows.
A2 (1) Paragraph 6 (effect of transfers: preliminary) is amended as follows.
(2) In sub-paragraph (2)(b), for “and possible recall following his release” substitute “, possible recall following release and any supervision default order”.
(3) In sub-paragraph (2)(c), for “and possible recall” substitute “, possible recall and any supervision default order”.
(4) In sub-paragraph (3), at the end insert—
(c) in relation to a person who is supervised under section 256AA of the 2003 Act, being ordered to be committed to prison or detention for failure to comply with a requirement imposed under that section or by a supervision default order;
(d) in relation to a person who is supervised under section 256B of the 2003 Act, being ordered to be detained for failure to comply with a supervision requirement imposed under that section.”
(5) In sub-paragraph (4), at the appropriate place insert—
““supervision default order” has the meaning given in section 268(1) of the 2003 Act;”.
A3 (1) Paragraph 8 (restricted transfers from England and Wales to Scotland) is amended as follows.
(2) In sub-paragraph (2)(a)—
(a) for “264A” substitute “264B”,
(b) after “267B of” insert “, and Schedules 19A, 20A and 20B to,” and
(c) after “104” insert “and 106B”.
(3) In sub-paragraph (4)(a)—
(a) for “264A” substitute “264B”,
(b) after “267B of” insert “, and Schedules 19A, 20A and 20B to,” and
(c) after “104” insert “and 106B”.
(4) In sub-paragraph (6)(f), for “paragraphs (b) and (c)” substitute “paragraph (c)”.
(5) At the end (after the sub-paragraph (7) inserted by section (Drug testing and appointments: offenders transferred within the British Islands) of this Act) insert—
“(8) The supervision provisions, as applied by sub-paragraph (2) or (4), have effect—
(a) as if any reference to something listed in the first column of the Table in sub-paragraph (10) were a reference to whatever is opposite it in the second column of that Table,
(b) with the modifications in sub-paragraph (11), and
(c) in a case falling within section 106B of the Powers of Criminal Courts (Sentencing) Act 2000, with the further modifications in sub-paragraph (12),
(and see also paragraphs 8A, 19A and 19B).
(9) In this paragraph “the supervision provisions” means—
(a) sections 256AA to 256E of, and Schedule 19A to, the 2003 Act,
(b) the provisions of the 2003 Act mentioned in section 256AC of, and Schedule 19A to, that Act, as applied by that section and that Schedule, and
(c) section 106B of the Powers of Criminal Courts (Sentencing) Act 2000.
(10) The references mentioned in sub-paragraph (8)(a) are—
(11) The modifications mentioned in sub-paragraph (8)(b) are—
(a) section 256AA(2)(b) of the 2003 Act has effect as if it also referred to a licence under the Prisons (Scotland) Act 1989 or the Prisoners and Criminal Proceedings (Scotland) Act 1993,
(b) section 256AC(7)(b) of the 2003 Act has effect as if for “the Secretary of State” there were substituted “the Scottish Ministers”,
(c) paragraph 2 of Schedule 19A to the 2003 Act has effect as if—
(i) sub-paragraph (d) referred only to section 215(1) and (2) of the 2003 Act, and
(ii) sub-paragraph (e) were omitted,
(d) paragraph 3 of Schedule 19A to the 2003 Act has effect as if, after sub-paragraph (7), there were inserted—
“(7A) Section 218(4)(a) applies as if for the words “has been notified by the Secretary of State” there were substituted “is satisfied”,
(e) paragraph 7 of Schedule 19A to the 2003 Act has effect as if—
(i) in paragraph 7(1), for “the supervisor must refer the matter to the enforcement officer” there were substituted “the supervisor may cause an information to be laid before a sheriff court in respect of the person’s failure to comply with the requirement”, and
(ii) sub-paragraphs (2) to (5) were omitted, and
(f) paragraph 12(3) of Schedule 19A to the 2003 Act has effect as if for “makes a community order or suspended sentence order” there were substituted “imposes any other sentence”.
(12) The further modifications mentioned in sub-paragraph (8)(c) are that section 106B of the Powers of Criminal Courts (Sentencing) Act 2000 has effect as if—
(a) in subsection (4), for paragraph (b) there were substituted a reference to an officer of a local authority constituted under the Local Government etc (Scotland) Act 1994 for the local government area in which the offender resides for the time being, and
(b) after subsection (3) there were inserted—
“(3A) Sections 256AA(3) and (6), 256AB(1) and 256E(2) have effect as if the references to the Secretary of State were references to the Scottish Ministers.”.
A4 After paragraph 8 insert—
“Restricted transfers between England and Wales and Scotland: further provision about supervision default orders
8A (1) This paragraph applies if—
(a) a person’s supervision is transferred to Scotland under paragraph 4 of this Schedule by means of a restricted transfer or transferred back to England and Wales under paragraph 7 of this Schedule, and
(b) at the time of the transfer, or transfer back, a supervision default order is in force in respect of the person.
(2) The supervision default order has effect as if, at the time of the transfer or transfer back, it specified the relevant area in which the person resides or proposes to reside in the new jurisdiction (rather than a relevant area in the jurisdiction from which the person is transferring).
(3) The court acting for that relevant area in the new jurisdiction may amend the supervision default order to specify that area.
(4) In this paragraph—
“relevant area” means—
(a) in England and Wales, a local justice area, and
(b) in Scotland, a local government area within the meaning of the Local Government etc (Scotland) Act 1994;
“supervision default order” has the meaning given in section 268(1) of the 2003 Act.”.
A5 (1) Paragraph 9 (restricted transfers from England and Wales to Northern Ireland) is amended as follows.
(2) In sub-paragraph (2)(a)—
(a) for “264A” substitute “264B”,
(b) after “267B of” insert “, and Schedules 20A and 20B to,” and
(c) after “104” insert “and 106B”.
(3) In sub-paragraph (4)(a)—
(a) for “264A” substitute “264B”,
(b) after “267B of” insert “, and Schedules 20A and 20B to,” and
(c) after “104” insert “and 106B”.
(4) Omit sub-paragraph (8).
(5) At the end insert—
“(9) The supervision provisions, as applied by sub-paragraph (2) or (4), have effect—
(a) as if any reference to something listed in the first column of the Table in sub-paragraph (11) were a reference to whatever is opposite it in the second column of that Table, and
(b) with the other modifications in sub-paragraph (12).
(10) In this paragraph “the supervision provisions” means—
(a) sections 256AA to 256AC, 256D and 256E of the 2003 Act, and
(b) section 106B of the Powers of Criminal Courts (Sentencing) Act 2000.
(11) The references mentioned in sub-paragraph (9)(a) are—
(12) The other modifications mentioned in sub-paragraph (9)(b) are—
(a) section 256AA(2)(b) of the 2003 Act has effect as if it also referred to—
(i) a custody probation order or licence under Part 2 of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160) (N.I. 24), and
(ii) a licence under the Northern Ireland (Sentences) Act 1998, Part 3 of the Life Sentences (Northern Ireland) Order 2001 (S.I. 2001/2564 (N.I. 2)) or Chapter 4 of Part 2 of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)),
(b) section 256AC of the 2003 Act has effect as if subsections (4)(c), (5) and (10) (provision for supervision default orders) were omitted, and
(c) subsection (7)(b) of that section has effect as if for “the Secretary of State” there were substituted “the Department of Justice in Northern Ireland”.”.
A6 (1) Paragraph 15 (unrestricted transfers: general) is amended as follows.
(2) In sub-paragraph (4A), for “This paragraph has” substitute “Sub-paragraphs (3) and (4) have”.
(3) After sub-paragraph (4A) insert—
“(4B) A person who is subject to a period of supervision of a type or length which could not have been imposed on an offender in the place to which the person has been transferred is to be treated for the relevant purposes as the receiving authority may direct.
(4C) In sub-paragraph (4B), “the receiving authority” means—
(a) in relation to a person transferred to Scotland, the Scottish Ministers,
(b) in relation to a person transferred to Northern Ireland, the Department of Justice in Northern Ireland, and
(c) in relation to any other person, the Secretary of State.”.
A7 After paragraph 19 insert—
“Service of process issued in Scotland
19A (1) Section 4 of the Summary Jurisdiction (Process) Act 1881 (service in England and Wales of Scottish process etc) applies to any process issued by a court in Scotland under the supervision provisions.
(2) “The supervision provisions” means the provisions listed in paragraph 8(9), as they are applied by paragraph 8(2) or (4).
Electronic monitoring in Scotland
19B (1) Section 245C of the Criminal Procedure (Scotland) Act 1995 (remote monitoring), and regulations under that section, apply in relation to the electronic monitoring of compliance with a curfew requirement in a supervision default order imposed under the supervision provisions as they apply in relation to the remote monitoring of compliance with a restriction of liberty order.
(2) “The supervision provisions” means the provisions listed in paragraph 8(9), as they are applied by paragraph 8(2) or (4).”.
A8 In paragraph 20(1) (interpretation), for the definition of “supervision” substitute—
(a) supervision under an order made for the purpose,
(b) supervision under a detention and training order,
(c) in the case of a person released from prison on licence, supervision under a condition contained in the licence,
(d) supervision under section 256AA of the Criminal Justice Act 2003 (supervision after end of sentence), including supervision under that section as applied by section 106B of the Powers of Criminal Courts (Sentencing) Act 2000, or
(e) supervision under section 256B of the Criminal Justice Act 2003 (supervision after release of certain young offenders serving less than 12 months).”’.
Jeremy Wright: Amendment 53 is part of a wider group of amendments that collectively make consequential amendments to the legislation governing the transfer of custodial sentences, associated periods of supervision after release, and warrants between England and Wales, Scotland, Northern Ireland and other UK jurisdictions. In particular, the bulk of the amendment deals with transfer of the new top-up supervision period to Scotland or Northern Ireland.
The Government have been working closely with the Scottish Government and the Northern Ireland Executive on the detail of the amendments. Both Administrations have confirmed that they are happy with both the principle and detail of the amendments. The Scottish Government have confirmed that they will seek a legislative consent motion in the Scottish Parliament for the amendments, while the Northern Ireland Executive do not consider an LCM to be necessary. I would like to put on record the extremely constructive approach taken by Ministers in both Administrations in helping to work through the technical detail of the amendments over the past few months.
Amendment 53 is the most detailed of the amendments. It will make changes to schedule 1 to the Crime (Sentences) Act 1997, which provides a framework for the transfer of custodial sentences and associated periods of post-release supervision between UK jurisdictions.
There are two types of transfer under schedule 1. The first is restricted, which means that the sentencing provisions of the exporting jurisdiction are incorporated into the law of the receiving jurisdiction in relation to the transfer of the offender, so that the offender can be managed in the receiving jurisdiction. The exporting jurisdiction retains overall control of the sentence. Unrestricted transfers are those in which the offender transfers on to an equivalent sentence in the receiving jurisdiction’s legislation. The receiving jurisdiction assumes complete control of the offender. That gives flexibility for both the exporting jurisdiction and the receiving jurisdiction to agree a transfer in the way that is most appropriate for an individual case. Transfers are always negotiated and never imposed. A receiving jurisdiction may refuse to accept a transfer for any reason.
Amendment 53 makes changes to schedule 1 to the 1997 Act to include top-up supervision and supervision default orders within the scope of the post-release supervision that can be transferred between UK jurisdictions. In particular, the amendment provides for the England and Wales post-sentence supervision provisions to apply as part of Scots or Northern Ireland law, but modified to fit court and probation structures in the two other jurisdictions, to offenders transferred to Scotland or Northern Ireland when in custody, on licence or in the post-sentence supervision period.
The amendment applies a gloss to certain England and Wales-specific terms so that, when incorporated into Scots or Northern Ireland law, the terms are read as being the equivalent in Scotland and Northern Ireland. It reserves certain functions such as setting post-sentence supervision requirements and amending the list of requirements available to the UK Secretary of State in relation to restricted transfer offenders. The amendment alters the application of the supervision drug testing requirements and conditions so that they work in the legal systems of Scotland and Northern Ireland, and it alters the application of the electronic monitoring requirements so that they work in Scotland’s legal system. New clause 7 does the same for the changes to drug testing as part of the licence period.
Amendment 53 also provides powers for the courts in Scotland and Northern Ireland to impose sanctions for breach of post-sentence supervision, and it provides powers for the courts in Scotland to administer orders for electronically monitored curfews and unpaid work for transferred offenders during post-sentence supervision.
Amendment 53 also provides for Ministers in Scotland or Northern Ireland to be able to direct how an offender transferred on an unrestricted basis is to be dealt with, given that there is no equivalent to post-sentence supervision in either jurisdiction. That might mean the receiving jurisdiction imposes its own bespoke conditions on the offender for the remainder of their sentence.
Amendments 56 and 57 amend existing powers for the Queen, via Order in Council, to apply, with suitable modifications, the transfer provisions in schedule 1 to the Channel Islands and the Isle of Man.
Finally, amendment 54 makes a consequential amendment to section 302 of the 2003 Act, which applies various provisions involving warrants for failure to appear at a hearing to long-standing legislation, thereby allowing for the enforcement in England of warrants issued in Scotland, and vice versa. The amendment adds to that list warrants under the top-up supervision provisions and those governing breach of the current period of supervision flowing from a DYOI or section 91 sentence.
I end by reassuring hon. Members that I have made a commitment to the Scottish Government and the Northern Ireland Executive that we will work with them in advance of commencement to review the existing operational guidance on transfer of sentences. The existing position, in which all transfers are agreed between the relevant jurisdictions, and in which jurisdictions retain the right to refuse transfers, will continue.
15A (1) Section 302 (execution of process between England and Wales and Scotland) is amended as follows.
(2) After “under—” insert—
“section 256AC(1) or (3),
section 256C(1) or (3),”.
(3) Omit the “or” before “paragraph 6(2) or (4)”.
(4) After “Schedule 12” insert “or
“paragraph 8(1) or 10(5) of Schedule 19A,”.’.—(Jeremy Wright.)