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The initial risk assessment will be conducted by the Probation Service, which is well placed to assess the level of risk presented by an offender. The Secretary of State will give careful consideration to any assessment showing that an offender presents a risk of serious harm. Such an assessment will have a significant influence in determining whether to recall for a fixed term. Here, as a general rule, the Secretary of State would not look
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The purpose of these re-release provisions is to ensure that recall is a proportionate, preventive measure and that recalled offenders who do not present a risk of harm are not held in custody any longer than is necessary to prevent further reoffending. They are also designed to reduce the burden on the Parole Board and Prison Service and will assist in achieving the Government’s stated objective to focus prison and Parole Board resources on the most dangerous offenders.
The noble Lord’s Amendments Nos. 94 and 97 would remove the power to amend the period of time that an offender must serve before being automatically re-released if given a fixed-term recall, or the period that other recalled offenders must serve before the Secretary of State must refer their case to the Parole Board. These re-release provisions are self-evidently new, and we want to monitor them closely. If operational experience demonstrates that by amending the period offenders spend in custody we can enhance public protection or improve future compliance, then we need a mechanism for making the necessary adjustment. The amendment would deny us the opportunity to amend the number of days that an offender would serve on recall or would be required to wait before being referred to the Parole Board other than by amending the Act through primary legislation. The order-making power that the amendments seek to remove is subject to the affirmative resolution procedure. The 28—day period cannot be changed without the approval of both Houses, which we believe provides a sufficient safeguard.
Turning to Amendment No. 98, the Government recognise that recalling a life-sentence prisoner has potentially serious consequences—it could result in the offender spending the rest of his life in custody. However, the purpose of recall action is to enable the Secretary of State to take swift and preventive action in removing potentially very dangerous offenders from the community. It is a crucial means of protecting the public, but such action is not taken lightly. The test to be applied when considering recall is whether the offender presents an unacceptable risk to life or limb. Clearly that can happen at any time of the day or night, which I believe makes it impractical to involve the courts at that stage.
Lord Wallace of Tankerness: I think that there will be a lot of sympathy with what the Minister says about the need to have some swift means of recall, but what, in practical terms, has been the problem with exercising the power of the Secretary of State under Section 32(2) of the Crime (Sentences) Act 1997?
Lord Hunt of Kings Heath: The noble Lord is right that that power is used. Essentially, we are seeking to regularise the position. As he said, Section 32(2) allows the Secretary of State to revoke a licence and recall a lifer without consulting the Parole Board only where it is in the public interest to do so, not as the basic position. As most cases need action in relation
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Lord Thomas of Gresford: Why would the Secretary of State want to recall a prisoner on licence if it was not expedient and in the public interest?
Lord Hunt of Kings Heath: Of course, that would be the test to be applied.
Lord Thomas of Gresford: That is the current test, so why change it?
Lord Hunt of Kings Heath: This is simply to regularise the position.
Lord Thomas of Gresford: It is regularised.
Lord Hunt of Kings Heath: It is no more than that. I shall certainly be happy to write to noble Lords with further clarification on the technical matters.
We believe that we have the balance right between the role of the Executive and the judiciary. The balance is achieved by the Secretary of State being able to take swift, preventive action, but the safeguards are in place to ensure that the decision taken by the Executive is open to challenge by the offender and is reviewed by an independent body.
Clause 31 ensures that every life prisoner recalled to custody will be informed of the reasons for his recall and of his right to make representations against the recall. In addition, all recalled life prisoners will be referred to the Parole Board for the recall to be reviewed. If the board considers that an offender is safe to be released, the Secretary of State must release the offender. Those are the safeguards that are built in to this mechanism.
Amendment No. 98 would require the authorities to secure the prior agreement of a High Court judge to recall a life sentence prisoner who has been assessed by the Probation Service as presenting an increased danger to the public. The concern is that that would make the recall process slower and more bureaucratic. On the construct of the Bill, we think that we have got the balance right between the need to take immediate action, on occasions, and the safeguards that are presented by the Parole Board and the representations that can be made to it. I hope that that is a constructive response to those points.
Lord Kingsland: I am most grateful to the Minister and to all noble Lords who have spoken in this debate. On Clause 31, I understand the concern of the Minister about the potential lack of flexibility if the agreement of the Lord Chief Justice is required before action can be taken. I would like to reflect on that between now and Report. However, I simply do not understand why any change in the current situation is needed. The reasons have been very well given by both speakers from the Liberal Democrat Benches. The true effect of Clause 31 is to free the Home Secretary from the requirement to have regard to the public interest when exercising this power in exceptional cases. But, as the noble Lord, Lord Thomas of Gresford, said, why does he need freeing? In these circumstances, he can act only in the public interest and to remove that requirement
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Lord Thomas of Gresford: Does the noble Lord agree that if he were not acting in the public interest, judicial review would follow?
Lord Kingsland: The noble Lord, Lord Thomas of Gresford, makes another very good point. I would have thought it was very much in the Government’s interest for the status quo to continue. The Secretary of State will be in no way constrained in the future from doing what he has always done in the past. Irrespective of what position the Government take on my suggestion about the Lord Chief Justice, in my submission they would be well advised to leave the current situation as it stands.
Lord Hunt of Kings Heath: As I have been advised that this is needed to regularise the position, would it be helpful and constructive if I agree to arrange for discussions on this matter between Committee and Report to enable noble Lords to consider this further?
4.30 pm
Lord Kingsland: That is a characteristically helpful intervention by the noble Lord, and I am grateful for his having made it.
We have two preoccupations on Clause 29. First, the Minister—this is no criticism of him—did not address the inflexibility of the 28 days. That inflexibility is a serious defect. I know that there are provisions in the Bill to extend the period or, indeed, to reduce it. However, our concern is not so much the length of the period but the inflexibility of the requirement that it should always be 28 days. We are talking about offences that are not violent or sexual.
The second issue, which has provoked a most interesting and stimulating debate in Committee, is the appropriateness of judicial involvement and the role of the Secretary of State rather than the Parole Board. I should have thought that Secretaries of State would be rather glad not to have this responsibility. On controversial matters, the first port of call of the newspapers—the tabloids, in particular—is the Home Office. It is the Secretary of State who is under the cosh. Surely it would be in his interests to implicate either the judiciary or the Parole Board in a decision that is often extremely politically sensitive.
I am not including just this Government in my observation; there has been a trend over, say, the past 20 years for Secretaries of State to offload certain types of activities on to so-called independent bodies—no doubt for very good reasons, but sometimes for the reason that it will relieve them from embarrassing political responsibilities. As I said, I should have thought that Secretaries of State would be rather glad not to have the responsibilities that the Government are inserting into the Bill. Apart from the jurisprudential dimensions, it is good politics to exclude the Secretary of State from these decisions. Why his role is being intensified escapes me.
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I am grateful for the Minster’s remarks about Clause 31. I hope that he will also think again about certain aspects of Clause 29 between now and Report. It is important to come back to this issue on Report, but in the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath moved Amendment No. 93A:
“(8A) The reference in subsection (8) to a specified offence (within the meaning of section 224) includes a reference to—
(8B) Section 48 of the Armed Forces Act 2006 (attempts, conspiracy etc.) applies for the purposes of subsection (8A)(b) as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to subsection (8A)(b).”
On Question, amendment agreed to.
[Amendments Nos. 94 to 97 not moved.]
Clause 29, as amended, agreed to.
Clause 31 [Recall of life prisoners: abolition of requirement for recommendation by Parole Board]:
On Question, Whether Clause 31 shall stand part of the Bill?
Lord Wallace of Tankerness: I do not intend to detain the Committee, as we have had a thorough examination of the issues—
Lord Bach: I am sorry to interrupt the noble Lord. He knows from what my noble friend said that we will be looking at this again before Report. Of course I do not want to shorten any of his wise words. As long as he understands that we require the clause to remain in the Bill for that purpose, I look forward to hearing what he has to say.
Lord Wallace of Tankerness: The noble Lord, Lord Bach, pre-empted what I was going to say. I had heard what the Minister said and very much welcome it, which is why I said that I was not going to detain the Committee. However, when he engages in the consultation that he has offered us, he will see that we on these Benches—the noble Lord, Lord Kingsland, indicated his support for this position—are saying that if you remove words such as “it is expedient and in the public interest” from an existing statue, courts think that there must be some significance to their removal. We want to understand in further discussion why the words were removed and why they could not be imported into the Bill.
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As background, what is the breakdown between recalls under Section 32(1) and Section 32(2) of the Crime (Sentences) Act 1997? Is the balance that most of them are done by the Secretary of State without prior recommendation from the Parole Board? I do not necessarily expect the Minister to give us that answer today, but that will be part of the discussion. We are not aware of any great cause célèbre where the Secretary of State has found that it has been impossible to recall a life sentence prisoner where there was an immediate danger. What is motivating the Government to introduce Clause 31 and take away some of the requirements and conditions under the existing law?
Lord Bach: I will make a brief attempt to answer the noble Lord, but I hope that he will be content with the fact that we are going to look at this again. No doubt discussion will take place in the usual way.
The problem has been that Section 32(1) requires the Secretary of State to act pursuant to a Parole Board recommendation to recall a lifer. Section 32(2) was the exception allowing the Secretary of State to revoke the licence and recall the lifer without consulting the Parole Board only where expedient in the public interest. As events have turned out—I have no figures—the vast majority of recalls for lifers have been under Section 32(2), not under Section 32(1). Concern has been expressed that, because the recalls are under Section 32(2), those who have been called back may regularly and on a large number of bases go to the court to say that it was not necessary for Section 32(2) to be used because it was not expedient in the public interest—in other words, there was no emergency. In that event, the attempt in the new provisions, which we will take away and look at again, was, as my noble friend said in answer to the previous set of amendments, to regularise what is actually happening; that was the thinking behind them. That is as far as I want to go in answering the noble Lord today.
Clause 33 [Removal under Criminal Justice Act 1991 (offences before 4th April 2005 etc.)]:
Clause 34 [Removal under Criminal Justice Act 2003]:
[Amendment No. 100 not moved.]
Clause 35 [Referral conditions]:
Lord Kingsland moved Amendment No. 101:
(iii) has previously been referred to a youth offender panel under section 16 above and a further referral has been recommended by a member of a youth offending team, an officer of a local probation team, or a social worker of a local authority.”The noble Lord said: We now return to justice issues and referral orders in particular. Our amendment is intended to give the courts the power to make a second order rather than to give a custodial sentence.
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As a number of your Lordships are aware, referral orders are now being used on a large scale. There are somewhere between 15,000 to 20,000 a year, and they comprise around 35 per cent of court sentences for indictable offences by young people. It is fair to say that they have operated rather well. They involve more than 5,000 trained volunteers who chair and participate in panels, diagnosing the problems that young people face and trying to identify practical ways forward that are relevant to young people’s problems. Even if we allow for those who pleaded guilty, the reconviction rates for young people who have been subject to a referral order have, by youth justice standards, been good. Based on the 2005 figures, which are the latest available, one-year reconviction rates for referral orders were 44 per cent, which are the lowest for any court sentence and compare favourably with other penalties—discharges are 61 per cent, fines are 63 per cent and reparation orders are 70 per cent—let alone community sentences, which are 70 per cent, and custody, which is 76 per cent.
When the amendment was debated in another place, the Minister, the right honourable David Hanson, objected to the option of the second order on three grounds. First, if a young person reoffends, they have clearly failed to take the restorative opportunity. Secondly, the referral order is deliberately designed to be targeted at those who receive a court sentence for the first time. Thirdly, the youth rehabilitation order introduced by the Bill, rather than a second referral order, is the appropriate next stage. In my submission, all these reasons are unconvincing.
The first argument did not address any of the reasons why the circumstances of a first order may have been particularly inappropriate or very different. The second argument gave no substantive reason why referral orders could not be operated selectively on a further conviction and was contradicted by the Government’s own concession in the same debate, which allowed a referral order on a second court appearance. The third argument did not acknowledge the unique nature of the referral order and the erratic nature of young people’s offending patterns, which mean that escalation should not be the automatic response.
Moreover, certain safeguards are built into the amendment. The use of a second referral order would be discretionary for the courts, with no obligation or presumption in favour of it. Referral order costs range up to around £1,500 and require the time of trained volunteers. The amendment would therefore limit the use to where the YOT or equivalent officer had recommended it to the court. It is they who administer the resources. In any case, if the court had to choose a YRO, this is generally unlikely to be cheaper. For all those reasons, I beg to move.
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4.45 pm
Lord Judd: I do not—I am sure that the noble Lord, Lord Kingsland, will forgive my saying this—make a practice of supporting Front-Bench opposition amendments, but on this occasion the logic of my experience leads me to strongly supporting the noble Lord’s arguments. I think that I have referred before in our deliberations to the fact that, with the good offices of the Home Office as previously constituted, I visited a youth offending team and was incredibly impressed by the work that it was undertaking. The team was candid with me and made it clear that the anxieties about what might be happening to young offenders were not simply a preoccupation of academic sociologists or criminologists but were the very real concern of the people whom we charge with implementing such referral orders and tackling the front-line work. They completely shared the anxiety—as expressed informally to the Joint Committee on Human Rights, of which I was then a member, by the Council of Europe commission on human rights—that we were unnecessarily in danger of criminalising the young.
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