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Lord Belstead: Normally I always take entirely the points made by my noble friend the Minister. However, in this case when the noble Baroness invokes what might be a danger with the European Court, I must take issue with her.
The fact that the Parole Board is being used at present in what otherwise would be an Executive procedure as regards recalls makes it a perfectly reasonable procedure. I moved an earlier amendment which we debated. That is exactly why the Government are using the Parole Board in order to ensure that curfew orders and hostel orders are decided by the Parole Board. I do not think that we are in jeopardy of the European Court as matters stand at present.
Baroness Blatch: I understand the point my noble friend makes. However, there are two issues. Unless one introduces two systems running in tandem to cover the supervision period, under the skeleton framework of proposals about which I spoke for consideration at Report stage, if a person were released by the Parole Board at the 84 per cent. point, it is true that up to the 100 per cent. point of sentence it would be within sentence and clearly would not breach the European Convention on Human Rights principles. I would put a question mark beyond that point during which the supervision period would run. We take the view that once someone is released either under the short sentence system or as proposed under the longer sentence system, that is deemed to be the end of the sentence and the period of supervision begins. There needs to be only one system operating for the supervision period. As it is
deemed to be post-sentence, it is important that if anyone is to be returned to court--albeit he or she could be returned to custody quickly in emergencies--authority must come from the courts and not as a result of executive action from the Parole Board.
Lord McIntosh of Haringey: Analogies with the intrusive surveillance and executive action under the Police Bill come to mind. The Minister is saying that there is something wrong with executive action which is not authorised properly by an outside body. I am glad to say that we have persuaded the Government that external judicial prior authorisation is required for intrusive surveillance. The analogy is that the action should be taken by an independent body, the Parole Board.
All of that shows that the Government are acting on a stereotype: that the Government are tough on crime but that the Labour Party in particular is soft on crime. It is a totally false stereotype. It is certainly true that we understand being tough on crime as looking for a more effective criminal justice system which includes prevention, detection and conviction as well as sentencing. We regret the concentration on sentencing, the most populist part of being tough on crime, which is the Government's stock response to all those questions. That does not mean, as I think noble Lords will confirm, that throughout the Bill we have not been tougher about sentencing in many cases, and about enforcement of the criminal law, than the Government.
It is certainly not the case that we propose anything in the amendment which is at any risk from the European Convention on Human Rights or the European Court. It is not in any conflict with what has been done before. The only change which has taken place, and which has forced the Government to propose weaker protection for the public, is because the Government are governed by their ideology. I am getting very tired of the Minister being amused by the things that we are saying. I really do wonder whether she can be listening if she finds these matters quite as amusing as all that.
It is the ideology of saying that the period served in custody has to be the same as the original sentence which causes the problem that the Government now have; namely, that they cannot enforce quickly and easily a return to custody simply because the original sentence has expired. My suggestion is not that there should be executive action outside the period of a sentence--at least, not now; we shall return to the Butler Committee proposals on Report. My proposal is that the Government should relax their own ideological identification of the sentence with the period in custody in order to ensure that we can have a more effective system of recall, as now exists and as is proposed by these amendments.
Baroness Blatch: I apologise to the noble Lord for being amused, but I did feel that there was a little bit of electioneering going on in what he was saying.
Perhaps I may put a question to the noble Lord. It would be helpful to clarify where he is coming from on this amendment. The only way in which we can bring the whole of the supervision period into the sentence
period is by having very much earlier eligible release dates; that is, the 25 per cent. period, the 50 per cent. period for sex offenders, and up to 10 years for certain other sex offenders. The noble Lord has tabled an amendment which he will discuss in a moment suggesting a 50 per cent. period for violent offenders.If the noble Lord is saying that recall to prison should only be on the basis of the within-sentence period, then he has to come clean and say that he would have an eligible period for parole very much earlier in the period of a sentence. If he is not saying that, my question to him is this. Is he really saying--because it would be new to the Parole Board as it operates now, and certainly a new power for the Government--that it would be possible to give the Parole Board and/or the Secretary of State an executive power to sentence, outside a sentence period, a person to custody without reference to the court?
Lord McIntosh of Haringey: That is a smokescreen, and the Minister knows it. The amendment is about the continuation of the existing powers of the Parole Board within existing Parole Board constraints. I think the kindest way to bring this to a close is to say that my understanding is that the undertakings given by the Minister to the noble Lords, Lord Belstead and Lord Carlisle, will involve a further discussion of these matters and may involve the Government in going further to meet the kind of concerns that are raised by this amendment, as by others. On that basis alone--
Baroness Blatch: I must intervene again. The noble Lord is rather widening the terms on which I gave my noble friends assurances that I will go on to consider their points of concern between now and the next stage. I have made it absolutely clear that we will not consider automatic release; nor will we consider bringing forward to an earlier point the eligible release date. We are talking about making sure that there is a proper risk assessment for release into the community at the 84 per cent. point of sentence.
Lord McIntosh of Haringey: What is the use of having a proper risk assessment unless there is provision for recall if the risk is assessed as being too great? That is what it comes down to. If I have over-estimated the importance of the Minister's undertaking to her noble friends, then I am sorry to hear it--not sorry from my own point of view, but because it would certainly mean that the principled objection that was put forward this afternoon to Chapter I of Part II of the Bill will have to be revived as a principled objection. We would rather deal with it as a revising Chamber and by negotiation. But if the Minister does not intend to put the protection of the public first, above ideology, then so be it. That is the way in which the matter will be debated at later stages. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 58:
The noble Lord said: Let us try to make this a slightly less emotive issue than the one we have just been discussing. I understand that we are to debate Amendment No. 58 with Amendment No. 59 in the name of the noble Lord, Lord Thomas of Gresford, which covers part of my Amendment No. 58.
This is again a question of "If it ain't broke, don't fix it". The present position is that time spent in accommodation provided for the purpose of restricting liberty but which is not a secure unit can count towards the time of a custodial sentence. The law on this point is governed by Section 67 of the Criminal Justice Act 1967 as amended by Section 130 of the Criminal Justice Act 1988. It provides that time spent on remand by a young defendant in accommodation provided for the purpose of restricting liberty should count towards a subsequent custodial sentence.
There have been recent cases, with which I shall not weary Members of the Committee, which established that accommodation provided for the purpose of restricting liberty was not limited to secure accommodation but also covered other forms of accommodation in highly structured and closely supervised conditions. Indeed, in reflection of that view of the courts, the Department of Health issued a memorandum on 16th May 1995 to directors of social services in which it was stated:
I do not care for the syntax there--
We are not proposing any change here; it is the Bill which proposes a change. The Bill proposes a restriction to the effect that only secure accommodation should count against a custodial sentence. That must be damaging to young offenders. Of course they need to have their liberty restricted (that is the basis on which we are all speaking) but at the same time they may need the wider range of education, training and facilities which would be available in a non-secure children's home--let us not hear talk of secure training establishments again because there are not any; they do not exist--and which might in many circumstances be more suitable to the young offenders without being, strictly speaking, secure accommodation.
We are not opposed to local authority secure accommodation, as noble Lords will know. We have always said that an expansion of local authority secure accommodation is a proper alternative to the secure training centres which the Government proposed. Nevertheless, it is necessary that there should be a wider
I shall not go into a tirade about the youth justice system, as I might well do; and I shall certainly not take any electioneering advantages, which I could do, about the youth justice system; but it is a fact that the Government now propose a change which is retrograde and which would restrict the availability of suitable accommodation for young people awaiting sentence. This amendment to restore the present position should be accepted by the Committee. I beg to move.
9.30 p.m.
Page 11, line 31, leave out ("secure accommodation") and insert ("a community home, provided that there has been no absconding or attempt to abscond").
"The Home Office ... have taken the view that when a young person is remanded to local authority accommodation and placed in a non-secure children's home with education on the premises, from which he/she is not permitted to leave--
"and who is not permitted to live at home with his/her parents, then the time spent there should count against sentence. In practice this will mean all placements in community homes".
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