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House of Lords

Monday, 14 July 2014.

2.30 pm

Prayers—read by the Lord Bishop of Carlisle.

Death of a Member: Lord Methuen


2.37 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death of the noble Lord, Lord Methuen, on 9 July. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.

UK National Plan on Women, Peace and Security


2.38 pm

Asked by Baroness Prosser

To ask Her Majesty’s Government what is their implementation plan for the United Kingdom National Action Plan on Women, Peace and Security.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, the implementation plan is being developed and will be published before the end of the year. It underscores our commitment to provide clearer monitoring and evaluation of progress on the women, peace and security agenda. The plan will establish baselines to show our current support for women and girls, with key milestones to be achieved by the end of 2015 and final targets to be achieved by the end of the current national action plan in 2017.

Baroness Prosser (Lab): I thank the Minister very much for that response. However, will the implementation plan be accompanied by a fully costed budget which clearly lays out proposed spending across all five of the new national action plan’s outcome areas—including, of course, the one on building national capacity—to deliver the UK’s women, peace and security commitments?

Baroness Warsi: The noble Baroness will be aware that this action plan, as currently published, is the third in the series. Although a series of principles have been set out each time, they have not always formed the basis of an implementation plan, so I think that this in itself is a step forward. The National Action Plan on Women, Peace and Security is funded through the Conflict Pool and its successor, the Conflict, Stability and Security Fund, which is about £1 billion-worth of funding. This part of the work will not be ring-fenced but will be done out of that broader Conflict Pool work.

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Baroness Falkner of Margravine (LD): My Lords, is my noble friend aware of the Ministry of Defence’s new report Global Strategic Trends out to 2045, which finds that the number of women participating in terrorist groups and in armed resistance movements will increase very significantly in the developing world? Can she tell the House whether the Conflict Pool’s thinking in that regard will apply across the board to the focus group countries listed in the UK’s action plan?

Baroness Warsi: My noble friend makes an important point. It is a new and developing area. For that reason, the women, peace and security plan must remain flexible. The MoD is committed to a number of issues under this plan. As my noble friend will be aware, responsibility for the plan is held by three different departments and includes training, employment, deployment and the work around NATO. I will certainly take back the issue that my noble friend raised and find out whether it is part of the thinking.

Baroness Lister of Burtersett (Lab): My Lords, given the vital role that women played in conflict resolution in Northern Ireland, can the Minister explain why the resolution on women, peace and security is not being applied to Northern Ireland, thereby leaving these same women feeling powerless and voiceless? Will the Government look again at this issue following the recommendation of the UN’s Committee on the Elimination of Discrimination against Women?

Baroness Warsi: The noble Baroness will be aware that the National Action Plan on Women, Peace and Security relates to foreign countries. Therefore, Northern Ireland would not fall under it. We do, of course, have a national action plan in relation to violence against women and girls, but I am not sure whether it covers the specific issue of women as peacebuilders. I will certainly write to the noble Baroness with information on where that element of work would fall.

Lord Howell of Guildford (Con): My Lords, does my noble friend accept that the Commonwealth network is potentially an enormous pressure group for gender equality as well as for peace and security? Can she assure us that our support for the development of the Commonwealth network is part of the action plan?

Baroness Warsi: The national action plan forms the broad basis of work that the Foreign Office, the Department for International Development and the Ministry of Defence do. There are six focus countries where the action plan will be delivered. I do not think that it has been split between Commonwealth and non-Commonwealth countries—it is a broad plan that works across the world.

Baroness Kinnock of Holyhead (Lab): My Lords, is there a specific budget to cover the need for comprehensive in-country consultations with local women’s organisations?

Baroness Warsi: There is no specific budget but specific work is being done. Money is available, but it is not ring-fenced in that way. We would not say, “That

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money has been put aside to consult with women’s groups on the ground”. However, money is available to consult with women’s groups on the ground. It has certainly been done in Libya and in Tunisia. It was, and is, also being done with women from Syria, as happened in the lead-up to the Geneva II discussions.

Baroness Tonge (Ind LD): Will the Minister tell us what the Government propose to do about the incalculable suffering of the women of Gaza as it goes on now? They have no shelter to take their children to. They have very little food and no clean water, and night after night they have to try to protect their children from the obscene war that is being waged on them.

Baroness Warsi: My Lords, it is a fact that women and children suffer most in conflict regions, and, of course, Gaza is no exception. I am sure that a number of noble Lords will be interested in and concerned about the situation as it unfolds in Gaza. I will therefore be repeating a Statement later today that the Foreign Secretary will make in about an hour’s time in the Commons.

Baroness Corston (Lab): My Lords, will the Minister tell the House what proposals the Government have for supporting women and human rights defenders in Afghanistan when British troops leave—the women who run the girls’ schools and women gynaecologists who do surgery on female victims of sexual assault? Such women have had their sons abducted and murdered. Surely we cannot leave them to the fate of the Taliban.

Baroness Warsi: This is an incredibly important area. I am sure that the noble Baroness met with Samira Hamidi, Parwin Wafa and Dr Dida Pighla last month when they visited, these incredibly inspirational human rights defenders in Afghanistan. As the noble Baroness will be aware, Amnesty International has now raised this issue on a number of occasions. I have commissioned a specific piece of work, and it is apparent from the initial research papers that I am getting back that there is a lot of support for human rights defenders, and specifically women’s human rights defenders, in Afghanistan, but there is also a real problem in relation to these women being aware of the support that is available. There is certainly some work that needs to be done to bring that work together. Some clearer work needs to be done on signposting and possibly on having an arm’s-length body that would take some of this work forward. However, I will certainly keep the noble Baroness updated. This is something that I am acutely aware of.

Baroness Thornton (Lab): My Lords, I congratulate the noble Baroness on making the renewed commitment to fulfilling our obligations as outlined under United Nations Security Council Resolution 1325. I want to return to the funding and resourcing of this, because none of it will happen unless the funding is available. I am slightly concerned that it would be easy for it to be squeezed under these circumstances. If the noble Baroness feels the need for us to mount a campaign to strengthen her arm on this, she has only to ask.

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Baroness Warsi: I am always happy to have support from the sisterhood. However, I can honestly say that, on this particular occasion, the concern that I have is that if you ring-fence an amount of money, say it is for women, peace and security and appoint somebody to do it, effectively that feels like you have done women, peace and security. I am quite keen for this work to be mainstreamed so that it is part of all the work that we do in relation to human rights, so that every Minister is responsible for women’s rights and so that all the money that is available to the Foreign and Commonwealth Office—and, indeed, to DfID and the MoD—can be made available for women, peace and security. However, if I need the support, I will certainly call upon the noble Baroness.

Health: Dementia


2.46 pm

Asked by Baroness Seccombe

To ask Her Majesty’s Government what steps they are taking to improve the early diagnosis, and to raise awareness, of dementia.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, in March 2012, the Prime Minister launched his Challenge on Dementia, to deliver major improvements in care and research. NHS England has set the first ever national ambition to improve dementia diagnosis. By March 2015, our aim is that two-thirds of the estimated people with dementia receive a diagnosis and appropriate post-diagnostic support. In May, Public Health England and the Alzheimer’s Society launched the Dementia Friends campaign, a major social movement to improve dementia awareness.

Baroness Seccombe (Con): My Lords, all those who have lived with a loved one with dementia know only too well the heartache and unhappiness it brings to the whole family, without mentioning the financial implications for the family and, indeed, for the country. Does my noble friend agree that the Government must do everything in their power in this ageing society to support, wholeheartedly and urgently, research into this horrible condition? Does he also share my view that the probability of there being a test for early diagnosis around the corner does not mean that we all have to rush to the doctor if we have trouble remembering a few names or even, I understand, if one is losing one’s sense of smell?

Earl Howe: My Lords, my noble friend is right on the last point. The advice I have received is that it is perfectly normal for memory to be affected by age, stress and tiredness, and that you should go to your GP only if you are worried. My noble friend is absolutely right about the importance of research because we need to make a step-change in the prevention of dementia and in its treatment and care. Research spending on dementia has increased by nearly 50% since

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2010-11. We are on track to meet the target of increasing funding to £66.3 million by 2015 and our ambition is to further double spending over the decade following the end of the present Parliament. My noble friend will also be aware that research was a major focus of the G8 dementia summit last December and the World Dementia Envoy, Dr Dennis Gillings, is leading a World Dementia Council to stimulate innovation in this area.

Baroness Turner of Camden (Lab): My Lords, I thank the Minister for what he said in response to this Question, but are the Government aware that dementia sufferers should never be left alone too much? I speak from experience because my sister is an Alzheimer’s sufferer. It is not a good idea ever to leave them too much on their own; it simply makes them a lot worse. Many are elderly people who otherwise live on their own and it is not a good idea. I have certainly set up arrangements for people to see my sister regularly, ensuring that she has her medicine and that she sees people every day. In that way, she is getting a lot better than I think otherwise she would, and she is able to participate in the life of the community as otherwise she would not be able to.

Earl Howe: The noble Baroness makes a series of extremely important points about the care of people with dementia. She is absolutely right. That is why we need to place greater emphasis on professional training and awareness, not only among NHS professionals but among social care staff, so that they appreciate the full dimension of the condition. Of course, we must remind ourselves that dementia is not a single condition. There are several conditions along that spectrum and each one has its own particular characteristics. We are emphasising to the NHS and local authorities that individual care planning is vital in this area.

Lord Laming (CB): My Lords, will the Minister reinforce the point that he just touched on, that dementia—as a generic term—affects individuals in very different ways? As we have already heard, individuals’ circumstances vary enormously in terms of the position of their carers. Will the Minister do everything he can to ensure that in the future services will continue to respect the unique qualities of the individual who is affected by this condition?

Earl Howe: Again, the noble Lord makes a central point. As he will know, dementia can range from mild cognitive impairment to difficulties in organising daily life, right through to confinement to bed and very serious cognitive impairment. Knowing this is very distressing for people in the early stages of dementia. All this is why we are laying such emphasis on NHS staff receiving training. By October 2013, 108,000 NHS staff had received tier 1 training on dementia, and more than 100,000 social care workers have received some form of dementia awareness training through workforce development funding. We are aiming to increase those numbers substantially over the coming years.

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Baroness Barker (LD): My Lords, as there are currently no effective drug therapies, will the Minister explain what the incentives are for GPs to make early diagnosis of the condition?

Earl Howe: It is generally recognised—although some GPs disagree—that early diagnosis of dementia is vital. It is vital for ensuring that a person with dementia can access the relevant advice, information and care and support that can help them live well with the condition. My noble friend is right that there is currently no cure for dementia, but there are drugs that can help with some of the symptoms and people with dementia have the right to know that they have the condition so that they can better plan for the future.

Lord Bradley (Lab): My Lords, I declare my health interests. The Alzheimer’s Society says that one person in five who suffer from dementia gets no support or information after diagnosis. Will the Minister say what specific actions the Government are taking now to try to improve the situation?

Earl Howe: My Lords, NHS England is investing £90 million in diagnosing two-thirds of people with dementia by March next year. We have amended the GP contract so that everyone over 75 has a named, accountable GP and the most vulnerable 2% in each practice will receive an enhanced service. The NHS Choices website has been enhanced. NHS England has provided CCGs with tools and guidance to help them set a local ambition to improve dementia diagnosis. The post-diagnostic support that the noble Lord mentions is absolutely central. There is a post-diagnosis working group to identify what good looks like in this area and roll out best practice.

Economy: Public Sector Net Borrowing


2.54 pm

Asked by Lord Sherbourne of Didsbury

To ask Her Majesty’s Government by how much public sector net borrowing has fallen between 2009-10 and 2013-14; and what is their forecast for the current financial year.

Lord Newby (LD): My Lords, between 2009-10 and 2013-14, public sector net borrowing fell from £157.3 billion to £107 billion, or from 11% of gross domestic product to 6.6%—a fall of more than a third. The independent Office for Budget Responsibility forecast in March this year—2014-15—that underlying public sector net borrowing will fall to £95.5 billion, or 5.5% of gross domestic product, half its peak in 2009-10.

Lord Sherbourne of Didsbury (Con): Does my noble friend agree that the reduction in the deficit over the past four years has been crucial in generating economic growth and employment? Does he also agree that it is

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therefore vital that the deficit reduction programme continues? Can he give the House some indication of when we might expect the deficit to be eliminated and the nation’s finances returned to balance?

Lord Newby: My Lords, on the current forecast we expect there to be a surplus in 2018-19. At the moment, as my noble friend points out, the economy is growing; we are the fastest growing economy in the G7 in the year to Q1 2014. The most recent employment figures showed that in the past year employment had risen by 780,000 and the claimant count had fallen by 406,000.

Lord Kinnock (Lab): Do not the figures used by the Minister somewhat obscure serious facts about the years to which he referred? In the last four years of the Labour Government, including the crisis years 2008 to 2010, total net borrowing was £329 billion, while in the four years of the current Government total net borrowing has been £104 billion higher at £433 billion. Is not that rise in borrowing over those years a very serious indictment of government policies which have actually retarded growth, increased inequality and shrunk the economy? Is it not time for the Minister to offer something of an apology, rather than a pat on his own back?

Lord Newby: My Lords, it is an indictment of the previous Government. In the first year that we were in office, £1 of every £4 spent by Government was borrowed. That was completely and utterly unsustainable, and that is why we are sorting things out.

Lord Tebbit (Con): My Lords, will my noble friend be very careful and encourage others to be careful in their use of the expressions “borrowing”, “deficit” and “debt”? The ghastly facts before us show that debt is rising remorselessly, and it will be, as he has said, some time yet before the enormous pile of debt incurred by the previous Labour Government can be brought under control and reduced?

Lord Newby: My Lords, I agree with the noble Lord. The relationship between debt and GDP is set to rise for a number of years more, even as we continue to reduce the deficit.

Baroness Symons of Vernham Dean (Lab): My Lords, given that the Minister answers for the whole House, and given that this Question is about savings and the economy, can he please tell us why a Statement has not been made to the House, yet the Prime Minister spoke this morning at the Farnborough air show about budgetary savings that have led, apparently, to extra expenditure on counterterrorism and cybersecurity? The Prime Minister said that these were very important announcements, and they were indeed. Should they not have been made to Parliament?

Lord Newby: My Lords, there are always questions when statements are made outside the House as to whether they should have been made inside the House.

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If the noble Baroness is concerned about it, she of course has the option of asking an Urgent Question.

Lord Razzall (LD): My Lords, is the Minister prepared to take this opportunity, in view of the questioning, to move from the short to the long-term and comment on last week’s report by the Office for Budgetary Responsibility, which states that by 2050 the public sector borrowing requirement will be more manageable than it would have been were it not for the actions of the coalition since 2010?

Lord Newby: Yes, my Lords; my noble friend is absolutely right. The report to which he refers demonstrates two things: first, with an ageing population, there will over a long period be significant pressures on the public finances, everything being equal; secondly, that a number of steps which have been taken with cross-party support, such as raising the retirement age, are making those long-term additional burdens more acceptable and possible to deal with in a sensible fiscal framework.

Lord Davies of Oldham (Lab): My Lords, did not the Government promise in 2010 to balance the books by 2015, and is it not now the case that they will be lucky—well, they will be out of office, but they would have been lucky—to have balanced the books by 2018? Is the Minister aware that in the early months of this year borrowing was £2 billion higher than in the same period last year? So it is not getting better.

Lord Newby: My Lords, it is getting better. It has got better in the year up to now. The OBR says that we are on track to reduce borrowing during this year. As the noble Lord knows, there were substantial economic headwinds from the euro area crisis, high commodity prices and the ongoing impact of the financial crisis. I am not sure whether he is really proposing that we should have cut the deficit more quickly by cutting public expenditure further or putting taxes up.

Sport: Accessible Stadia Guidance


3.02 pm

Tabled by Lord Faulkner of Worcester

To ask Her Majesty’s Government how they plan to ensure that professional sports clubs follow the Accessible Stadia Guidance.

Lord Faulkner of Worcester (Lab): My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and declare an interest as vice-president of the charity, Level Playing Field.

Lord Gardiner of Kimble (Con): My Lords, the Government are committed to ensuring that all spectators have enhanced and appropriate access to sporting venues and services, and that professional sports clubs are aware of their responsibilities towards disabled spectators. The Department for Culture, Media and

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Sport is working with the Department for Work and Pensions on a range of measures to ensure that the rights of disabled spectators are met by professional sports clubs.

Lord Faulkner of Worcester: Does the Minister agree that, although some sports are making a real effort, the situation with professional football is, as the Minister for Disabled People said when he wrote to all professional clubs in April, “woefully inadequate”, when it was revealed that only three clubs in the Premier League, the richest league in the world, comply with the requirements for the number of spaces for supporters in wheelchairs? Does he not think that the time has now come for equality law to be properly enforced and the guidelines, which have been in place since 2004, properly implemented and clear new instructions issued to the Sports Grounds Safety Authority?

Lord Gardiner of Kimble: My Lords, first, I acknowledge the noble Lord’s tireless work on ensuring that there is greater access for disabled people. Importantly, the Sports Grounds Safety Authority is currently in discussion with Level Playing Field on a revision of the guidance to ensure that it takes account of legislative, technical and other advances that have occurred over the past 11 years. Premier football clubs have considerable means and I think that they should be looking to do very much better.

Lord Holmes of Richmond (Con): My Lords, I draw my noble friend’s attention to the work which will be undertaken by the Equality and Human Rights Commission, in which my interest is declared in the register, to address this specific point: to ensure that when a disabled spectator goes to football, rugby, cricket or whatever sport in this country, we guarantee that they have an inclusive spectator experience. I am sure that my noble friend will agree.

Lord Gardiner of Kimble: My Lords, I am delighted that my noble friend is leading on that initiative of the Equality and Human Rights Commission to deliver the sports equality standard programme. Across all sports, we need to ensure that there is an improvement in physical and cultural accessibility. It seems to me that it is a basic right of disabled people to have as much enjoyment from sport as those who are not disabled.

Baroness Grey-Thompson (CB): My Lords, is the Minister aware that certain Premiership football clubs such as Manchester United refuse to sell season tickets to wheelchair users and that it has only 42% of the accessible seating that it should? At other clubs, it is impossible to buy one because of the lack of accessible seating. What steps are Her Majesty’s Government taking to ensure a fair ticketing policy for all spectators and fans?

Lord Gardiner of Kimble: My Lords, first, the Equality Act prohibits discrimination against disabled people in the provision of goods, facilities and services. That

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is precisely why my right honourable friend Mike Penning, the Minister for Disabled People, and the Minister for Sport are so keen to ensure that, in their discussions with all sporting bodies, it is absolutely a fixture on the agenda of those meetings that this greater access is addressed and that clubs which ought to know better do better.

Lord Foulkes of Cumnock (Lab): My Lords, I declare an interest as a former chairman of the Heart of Midlothian Football Club. Is the Minister aware that there is a country which is better than we are at access for disabled people, better at training young people in football, cheaper as far as access to the stadia is concerned and better in terms of all the facilities in the stadium, and whose example we could well follow? That country is the Federal Republic of Germany.

Lord Gardiner of Kimble: My Lords, it was quite an extraordinary match last night and, clearly, there are lessons to be learnt for many countries from the ability of those German players. However, it is very important that this country picks up on what we were so successful at in 2012 with the Olympics and Paralympics, as that legacy needs to transcend all sporting stadia.

Baroness Brinton (LD): My Lords, I speak as a season-ticket holder at Southampton Football Club, which is one of the four that meet the requirements. Should training for staff also be ensured? As an away supporter, I often have to sit with home fans, which can be quite difficult, but you can always tell when you are with someone who understands the issue of someone who is in a wheelchair or has other disability problems.

Lord Gardiner of Kimble: My Lords, my noble friend makes a very important point: that disabled people—their rights being the same as those who are not disabled—should be sitting among the supporters of whichever side they wish. That is a perfectly sensible and correct thing to do. Clearly, training people is also an important part in providing the facility, as is providing carers to attend with disabled people, which many clubs are undertaking. That is the way forward.

Lord Rosser (Lab): My Lords, do the Government consider the existing equality legislation sufficient to bring about real change in accessibility and the provision of facilities for disabled supporters, particularly at our larger football stadia and arenas? If the Government do so consider, why is that legislation not being used? If they do not consider existing legislation sufficient to bring about real change, how much longer do they intend to wait before passing further legislation that will achieve the desired objective for disabled supporters? I declare an interest as a vice-president of Level Playing Field.

Lord Gardiner of Kimble: My Lords, obviously, no one would rule out further legislation if it becomes necessary. I know from looking at the exchanges of correspondence that this is something which the previous Government thought through. Clearly, it is the responsibility of each club to look at how it is dealing

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with access for disabled people. We think that is the best way to go because legislation can very often be a blunt instrument. We know that the Premier clubs are particularly well able to ensure that they have the necessary adaption, whereas perhaps some other clubs would find difficulties. That is exactly why the Equalities Act 2010 was couched in the way that it was.

Pensions Act 2011 (Consequential and Supplementary Provisions) Regulations 2014

Motion to Approve

3.09 pm

Moved by Lord Bates

That the draft regulations laid before the House on 17 June be approved.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 9 July.

Motion agreed.

Legislative Reform (Patents) Order 2014

Motion to Approve

3.09 pm

Moved by Lord Popat

That the draft order laid before the House on 6 May be approved.

Relevant document: 1st Report from the Regulatory Reform Committee.Considered in Grand Committee on 9 July.

Motion agreed.

Criminal Justice and Courts Bill

Committee (1st Day)

3.09 pm

Relevant documents: 2nd Report from the Constitution Committee, 3rd Report from the Delegated Powers Committee, 14th Report, Session 2013-14, from the Joint Committee on Human Rights.

Clause 1 agreed.

Clause 2: Specified offences

Amendment 1

Moved by Lord Faulks

1: Clause 2, page 3, line 22, leave out “, (4), (5) and (6)” and insert “and (4)”

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, Amendment 1 removes references in Clause 2(10) to subsections (5) and (6) of that clause. Subsection (10) makes transitional provision around the application of the “dangerousness” life sentence, imposed on conviction of an offence listed in Schedule 15 to the Criminal Justice Act 2003, which

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carries a maximum penalty of life where the court considers that there is a significant risk to members of the public of serious harm from further Schedule 15 offences. However, such a sentence could never be imposed for the offences mentioned in subsections (5) and (6) so we do not need to refer to them.

The other amendments are minor changes that correct inconsistencies and lacunae relating to dangerous offender provisions in the drafting of the Criminal Justice Act 2003. Amendment 2 relates to foreign service offences and the extent to which they are treated as previous convictions for the purposes of the dangerous offender sentencing scheme. Previous convictions may be relevant in determining eligibility for an extended determinate sentence or for the “two strikes” life sentence. This amendment ensures that all previous convictions for a member state service offence, which is the equivalent of an offence listed in Schedule 15B to the Criminal Justice Act 2003, can count as relevant previous convictions for these purposes.

As currently drafted, paragraph 49 of Schedule 15B to the Criminal Justice Act 2003 covers only equivalent member state service offences for which the offender was convicted by a court operating in the member state. However, a conviction for a member state service offence could be given by a service court sitting elsewhere in the world. Currently, such convictions are covered for UK service courts operating outside the UK, and we should treat member state convictions in the same way.

Amendment 3 relates to certificates of conviction. There is provision in the Criminal Justice Act 2003 for such certificates to be treated as evidence as to whether a previous conviction is a relevant previous conviction for the purposes of the “two strikes” life sentence. Such certificates could assist in dealing with disputes about, for example, whether a previous conviction for robbery under Section 8 of the Theft Act 1968 involved possession of a firearm. In the former case, the robbery would constitute an offence listed in Schedule 15B to the Criminal Justice Act 2003. However, no similar provision is made in relation to deciding eligibility for an extended determinate sentence. To rectify this anomaly, we are extending Section 232A of the Criminal Justice Act 2003 to Section 226A(2) of the Criminal Justice Act 2003 as well.

Amendment 6 relates to how the court determines the date of a previous offence. Generally, where legislation makes a change to sentencing, provision is made for how the date of an offence should be determined if it is found to have been committed over a period of two or more days or at some time during a period of two or more days. This is helpful because such changes often apply only where an offence is committed on or after the commencement of the provision in question. However, there is no provision of this type in relation to Section 224A of the 2003 Act—the “two strikes” life sentence. This is an anomaly, and we consider that we need to rectify it. I beg to move.

Amendment 1 agreed.

Clause 2 agreed.

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3.15 pm

Clause 3: Schedule 15B offences

Amendments 2 and 3

Moved by Lord Faulks

2: Clause 3, page 4, line 11, at end insert—

“( ) Part 4 of Schedule 15B to the Criminal Justice Act 2003 (offences under the law of Scotland, Northern Ireland or a member State other than the United Kingdom listed for the purposes of sections 224A(4) and 226A of that Act) is amended as follows.

( ) In paragraph 49, for “An offence” substitute “A civilian offence”.

( ) After paragraph 49 insert—

“49A A member State service offence which, if committed in England and Wales at the time of the conviction, would have constituted an offence specified in Part 1 or 2 of this Schedule.

49B In this Part of this Schedule—

“civilian offence” means an offence other than an offence described in Part 3 of this Schedule or a member State service offence;

“member State service offence” means an offence which was the subject of proceedings under the law of a member State, other than the United Kingdom, governing all or any of the naval, military or air forces of that State.””

3: Clause 3, page 4, line 21, leave out “this section” and insert “subsections (2) to (5)”

Amendments 2 and 3 agreed.

Amendment 4

Moved by Lord Beecham

4: Clause 3, page 4, line 26, at end insert—

“(10) Before this section comes into force, the Secretary of State shall—

(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and

(b) lay a report before Parliament containing—

(i) his assessment of the resources required for additional hearings; and

(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.”

Lord Beecham (Lab): My Lords, Amendments 4, 5, 8 and 16 relate to the obligations imposed on the Parole Board by Clauses 3, 4, 5 and 7. Clause 3 adds terrorism and explosive offences to the category of the enhanced dangerous offenders sentencing scheme. Cases will be referred to the board for a decision about release instead of offenders being eligible for automatic release after serving two-thirds of their term. Clause 4 extends this to all such offenders serving extended determinate sentences. Clause 5 applies a similar provision to other offenders convicted of serious crimes, as listed in the schedule, who will be subject to discretionary rather than automatic release between the halfway and end points of their sentence. Clause 7 creates a new release test for recalled prisoners to be applied by the board under which the Secretary of State or the board has to be satisfied that it is highly unlikely that a prisoner would breach a condition of his licence.

All these measures are likely to increase the pressure on an overstretched and underresourced Parole Board. The Government estimate an increase of 1,100 hearings

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a year by 2030, rising by an estimated 50 next year, 400 by 2020 and ultimately requiring an extra 1,000 prison places. As the Prison Reform Trust points out, the Ministry of Justice has form in these matters. When indeterminate sentences—IPPs—which we will be debating later were introduced, the ministry, under a previous Administration, estimated an increase in the prison population of 900, but by the end of last year 5,335 people were serving IPP sentences, two-thirds of them beyond their tariff date.

This was in good measure a result of the failure, frequently commented upon in this House and beyond, to provide the necessary resources to the Parole Board to prepare people for release and rehabilitation. As the Prison Reform Trust reported, offending behaviour programmes are scarcely available and limited in their scope and effectiveness, and it is inherently difficult to demonstrate reduced dangerousness and pass the high safety threshold for release. That was in 2010, when numbers were smaller and staffing greater. Moreover, as the Prison Reform Trust points out, the Government’s impact assessment of the provisions of the Offender Rehabilitation Act estimated that 13,000 offenders would be recalled or committed to custody a year, leading to an extra 600 prison places being needed. Have the Government looked into the real impact of the Offender Rehabilitation Act on this situation to date and as anticipated in the near future? Further, what assessment have they made of the effect of the recent Supreme Court judgment in the Osborn case requiring the board to hold more oral hearings, which last December alone had increased by one-third in indeterminate review cases to just under 400 in a month and to 90 in indeterminate recall cases?

The board warned in its annual report, as it appears from today’s Daily Telegraph, that the number of oral hearings could increase from 4,500 a year to as many as 14,000, and at an additional cost of £10 million. What is the Government’s response to this estimate? The Minister has apparently indicated that an extra £3 million will be allocated to the Parole Board. How does that square with the board’s own estimate of the potential cost? What is the Government’s estimate of the impact on prison numbers and on the work of the board of the Secretary of State’s latest headline-grabbing decision that no prisoner may be transferred to an open prison if he or she has previously absconded, which is apparently already building up a backlog of Parole Board hearings? How do the Government expect the board to cope with these pressures when it has already lost 20% of its staff and when its members are now having to use an unreliable video link system to conduct hearings—another example of the problems associated with rushing headlong into the all too frequently costly and inadequately tested application of IT and electronic systems?

All this is set against a background of massive overcrowding in many prisons with the attendant problems that that poses for prisoners and staff, and with the system too often being pared back to one of simple confinement. The chief inspector has spoken of dangerous instability in the prison estate and has pointed out that despite some recent high-profile cases, there is a very low failure rate for release on licence. Further questions arise over the Government’s apparent intention, as

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reported in the


on 21 June, to transfer responsibility for the administration of recall cases to the magistrates’ courts. Can the Minister tell us whether this is the Government’s policy, because of course the report may be wrong, and if so, what consultations have taken place with the Parole Board, the Magistrates’ Association, the judiciary and other interested parties? Is there an intention to pilot such a concept before rolling it out?

It really is time for the Government to adopt less of the kind of muscle-flexing populism that is so often exhibited by the Secretary of State and more of the considered approach we have come to expect of the Minister. These amendments are designed to ensure that the Parole Board is fully engaged with any plans to implement these measures and that Parliament has an opportunity to scrutinise and approve their implementation on the basis that the necessary resources will be made available to ensure that the pathway to rehabilitation is properly and securely paved. I beg to move.

Lord Ponsonby of Shulbrede (Lab): My Lords, I want to add to some of the comments made by my noble friend Lord Beecham on the make-up of the review of the Parole Board. My understanding is that at present Parole Board members can either sit as a single Parole Board member or as two or as three. They can be a mixture of lay people and lawyers. It is of course desirable that the more serious the case, the greater the legal training and the more appropriate the experience of the people sitting on those hearings. I also wonder whether the Minister can comment on the possibility of using lay magistrates to sit on parole hearings. Is this something that the Ministry of Justice is willing to consider? We have a resource in the pool of magistrates throughout England and Wales, so is the ministry considering the use of magistrates in parole hearings? The whole subject of the Parole Board is extremely important, as we have heard from my noble friend Lord Beecham, and is something that needs to be managed very carefully, given the reduction in the resources being made available to it.

Lord Ramsbotham (CB): My Lords, perhaps I may add a word to what the noble Lord, Lord Ponsonby, has said in amplification of his noble friend Lord Beecham. In addition to saying that £3 million would be made available, the Minister has been quoted as saying that a number of changes are to be introduced to ease the pressure on the Parole Board. In addition to the possibility of lay magistrates being used, as mentioned by the noble Lord, Lord Ponsonby, can the Minister outline exactly what those changes are? I am quite certain that the Supreme Court introduced the Parole Board in oral hearings because it was satisfied that the board gave a fair hearing to people, and that was how it operated. I would hate to think of some of the parole decisions being reduced to bureaucratic decisions taken by officials.

Lord Hope of Craighead (CB): My Lords, I shall add a word based on my own experience. It is quite difficults to visualise the work of the Parole Board

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members unless one has seen them at work. One thing that struck me some years ago when I attended Parole Board hearings from time to time was the huge volume of paperwork generated by individual cases. Of course, the longer a prisoner remains in custody, the bigger the volume becomes. The technique which the Parole Board member has to apply to each case is to work his or her way through the file, which takes a great deal of time, then explain whatever views he or she has reached, based on the information in the file. It is immensely time consuming. My experience was that Parole Board members were extremely conscientious; the people who know best what the effect was of the diminution of resources on their ability to do their job are the Parole Board members themselves, which is the strength of the point that the noble Lord, Lord Beecham, made. I suggest that his amendment deserves a great deal of consideration.

Lord Faulks: My Lords, the amendments relate to four clauses, which will have the effect of increasing the involvement of the Parole Board in certain areas. The clauses we are considering are: Clause 3, which adds a number of terrorism-related offences to the enhanced dangerous offenders sentencing regime; Clause 4, which will require all prisoners serving an extended determinate sentence to be referred to the Parole Board before early release can be authorised; Clause 5, which creates a new determinate sentence for serious child sex and terrorist offenders, under which prisoners will be referred to the Parole Board before early release can be authorised; and Clause 7, which introduces a new test for determining whether offenders receive fixed-term or standard recall, and to inform re-release decisions.

Our impact assessment acknowledges that Clauses 4 and 5 will add to the Parole Board’s workload. However, Clause 3 should not give rise to more than negligible impacts, since very few offenders are convicted of the offences in question. In any event, it should not impact on the Parole Board over and above the estimated impact of Clause 4 because, following the changes in Clause 4, all those serving extended determinate sentences will be referred to the Parole Board for early release in any event. We also think that Clause 7 will not have significant effects, because we estimate it will add a very small percentage to the total number of standard recalls that the board currently deals with.

We have looked at the likely impact of these provisions and the time over which the impacts will make themselves felt, and are confident that the additional work that will be created will be manageable. Most of the increase in Parole Board workload will arise from the new determinate sentence created by Clause 5 and Schedule 1, which will apply only to offenders who are sentenced after the new sentence is implemented. Those who commit these offences very often receive substantial prison sentences; under the new sentence, they will serve half their custodial term in prison before they are referred to the Parole Board for consideration for release. All this means that there will be a substantial time lag before these cases start to come through to the board. Our estimate is that the board will see the full impact of changes to early release between 2020 and 2030. We are also supporting the board in dealing

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with the consequences of the Osborn, Booth and Reilly judgment, referred to by the noble Lord, Lord Beecham, in his helpful remarks.

The Parole Board has established a programme of work to equip itself for dealing with the challenge of providing an increased number of oral hearings. The first phase of that work, which involved scoping the challenge and setting up immediate plans to deal with the increased demand, is now complete. The second phase, which involves developing a new case management model for the future, is under way.

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The board has identified the scale of the increase in workload and the increased capacity needed. Until now, around 550 cases have been listed a month, which has been the board’s maximum capacity. Additional resources have been allocated to facilitate an increased capacity of nearer 750 cases. Determinate sentence parole review cases have been changed to single-member panels to bring them in line with other paper reviews. This has increased capacity from 105 per month to 142, without increasing resource.

Pilots have been set up to trial a new approach to providing support to parole reviews and a new central assessment system. This includes a new approach to listing hearings. In July, panels will be composed of two rather than three members. The board is recruiting additional case managers to increase the capacity for oral hearings.

I, should, however, emphasise that in all these reforms the board is very conscious of the need to maintain the quality of its decisions. The noble and learned Lord, Lord Hope, is absolutely right to emphasise the volume of paperwork that is often involved and the skill and tenacity involved in getting to the bottom of the various pieces of information on a prisoner’s file. It is also important that there should be fair, robust and timely reviews, with the overriding priority of protecting the public.

The Ministry of Justice has provided additional resources to the board to support this work; further funding, in the sum of £1.2 million, was provided in 2013-14. This enabled the board to take measures, including the recruitment of additional staff, to support the increased provision of oral hearings. In addition, the board’s 2014-15 baseline funding has been increased from £10.8 million to £13.8 million.

The key point about these amendments is that a new operating model that provides greater flexibility to manage changes in workflow will have been established well before the board sees a substantial impact from these provisions. We must also remember that the number of IPP cases—a subject of great concern to your Lordships’ House—that the board will have to deal with will decrease over time following the abolition of these sentences in 2012.

I should mention the suggestion in the amendment that Parliament needs a specific duty to scrutinise resource issues for the Parole Board in respect of commencement of particular sentencing provisions. With respect, I am not convinced that this is a practical approach to legislative changes of this type. Potential changes to the workload of arm’s-length bodies are

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not a rare occurrence. There are already established governance structures to ensure that new pressures on the Parole Board are taken account of and the board is consulted during the budget allocation process. The noble and learned Lord, Lord Hope, is, of course, right that the Parole Board is best equipped to help the Ministry of Justice inform itself of the demands of its work and its nature. As noble Lords will also be aware, the Ministry of Justice is already accountable to Parliament for the discharge of its responsibilities. I do not think that putting such an obligation on the face of legislation would add anything to the current arrangements, and would seem to constitute an undue burden on Parliament.

I was asked by the noble Lords, Lord Beecham and Lord Ponsonby, about the possibility of magistrates taking on some of the Parole Board work. Indeed, there was a story on that in the Times. The Government are considering a number of options to address the impact of the Supreme Court judgment, and no decision has yet been made. The Parole Board does an excellent job in protecting the public but we want to make sure that it continues to do so in the light of these increased pressures.

I should say a little more about Osborn, Booth and Reilly. That decision means that while the Parole Board adjusts its working practices to accommodate this increase in oral hearings, it is likely that there will be some delays. The board is working closely with the National Offender Management Service and the ministry to identify the best way to implement the requirements of the judgment. In the short term, the board has refocused its resources in order to support an increasing number of the oral hearings. In fact, for those noble Lords who are interested, further details of the work can be found at the Ministry of Justice website.

The Parole Board performs an extremely valuable function and it is important that it is adequately resourced and in a position to deal with the demands that sentencing provisions create. We are well aware of that. There is, of course, regular communication between the Ministry of Justice and the Parole Board, and I hope that I have reassured the noble Lord, Lord Beecham, whose concern on the matter is understandable. The ministry is, however, well aware of the issue and I hope that in the light of my response he feels able to withdraw his amendment.

Lord Beecham: My Lords, I thank the Minister for his explanations. I do not, I am afraid, find them entirely satisfactory, particularly in relation to the increased workload and its cost. It is, after all, the board’s annual report that suggested that there would be an increase of nearly threefold in the number of hearings—from 4,500 to 14,000—at what it estimated would be an additional cost of £10 million, which, on the Minister’s figures for the current costs, represents a doubling of the cost. Yet the Government’s planned contribution is of the order of £3 million, which is significantly less than was indicated by the board’s figures. There is still an issue here, and that is what lies behind the suggestion that we in Parliament need to take an overall look at the situation as it develops in terms of the adequacy of resources.

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The objectives are admirable, but it does not seem to me and, I suspect, some other noble Lords that the Government have fully thought through and costed what is required to deliver the policy—hence the suggestion that the Parole Board be consulted. Consultations are, no doubt, taking place but the results of those consultations, and the implications for staffing and otherwise, should be laid in a report before Parliament in order that it can exercise its job of scrutinising a significant area of public policy that potentially impacts upon public safety. All of us wish the service to work well but it has to be properly resourced, and it is necessary for Parliament to have a role in doing that, given that, on the face of it and for all the Government’s good intentions, they do not seem to have worked it through sufficiently.

At this stage, I will not press the amendment but it is a matter to which we may well return on Report. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 3, as amended, agreed.

Clause 4: Parole Board release when serving extended sentences

Amendment 5 not moved.

Clause 4 agreed.

Amendment 6

Moved by Lord Faulks

6: After Clause 4, insert the following new Clause—

“Minor amendments

(1) In section 224A of the Criminal Justice Act 2003 (life sentence for second listed offence), at the end insert—

“(12) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(b) and (4)(a) to have been committed on the last of those days.”

(2) In section 232A of that Act (certificates of conviction), for “section 224A” substitute “sections 224A and 226A”.

(3) In section 218A of the Armed Forces Act 2006 (life sentence for second listed offence), at the end insert—

“(8) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it must be taken for the purposes of subsections (1)(c) and (5)(a) to have been committed on the last of those days.””

Amendment 6 agreed.

Amendment 7

Moved by Lord Lester of Herne Hill

7: After Clause 4, insert the following new Clause—

“Review of whole life orders

After section 30 of the Crime (Sentences) Act 1997, insert—

“30A Review of whole life orders

(1) A prisoner who is—

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(a) the subject of a whole life order made under—

(i) section 269 of the Criminal Justice Act 2003, or

(ii) section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000, and

(b) has been in custody for 25 years,

may apply to the Parole Board for a review of the whole life order.

(2) If on an application under subsection (1) the Parole Board is satisfied that the prisoner has made such exceptional progress towards rehabilitation that a whole life order is no longer justified, it shall substitute a determinate tariff for the whole life order.

(3) No fresh application may be made by a prisoner under subsection (1) before the period of five years has elapsed since the Parole Board’s determination of the prisoner’s previous application.””

Lord Lester of Herne Hill (LD): My Lords, the amendment was proposed by the Joint Committee on Human Rights, of which I am a member, in a report published on 14 May and is in the Printed Paper Office. I mention that because I realise that what I am about to say will certainly be intelligible to the distinguished jurists who are present, but ordinary members of the public might be a little puzzled by some of it. I shall do my best to make it straightforward. I am delighted that my friends, noble and learned and otherwise, are supporting the amendment.

In the case called Vinter v United Kingdom, the Grand Chamber of the European Court of Human Rights decided that for life sentences to remain compatible with Article 3 of the European Convention on Human Rights there had to be a possibility of release and a possibility of review, both in theory and in practice.

Currently, under Section 30 of the Crime (Sentences) Act 1997, prisoners on a whole life order cannot be released except with the discretion of the Secretary of State for Justice on compassionate grounds. The Strasbourg court held that this did not offer sufficient legal certainty. In the recent case of McLoughlin and Newell on sentencing appeals which was decided on 18 February 2014, the Court of Appeal held that the current regime under Section 30 is compatible with Article 3 of the convention because the Secretary of State is not restricted to the medical grounds set out in the Prison Service order, but is under a public law duty to take into account all exceptional circumstances.

The Joint Committee on Human Rights, as I have mentioned, published its report on 14 May. It commended the usefulness of the Government’s European Convention on Human Rights memorandum, which is fully in accordance with our recommendations for best practice by government departments. As the memorandum rightly acknowledges, the fact that the provisions in the Bill bring some terrorist-related offences within the scope of possible whole life orders for the first time directly raises a human rights compatibility issue as to whether the law currently provides sufficient opportunity for a review of a whole life order in the light of the judgment of the Grand Chamber in Vinter, and the position of the Court of Appeal in McLoughlin.

In paragraph 1.23, our report says:

“There is some continuing legal uncertainty, however, as to whether the domestic law, as interpreted by the Court of Appeal, now provides an adequate mechanism for review of whole life prison orders. The Grand Chamber in Vinter was unequivocal that ‘a whole life prisoner is entitled to know, at the outset of his

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sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought’.

The judgment is clear that the procedure for such a review mechanism should be set out clearly in law so that prisoners subject to a whole life order clearly know, at the outset of their sentence, the process by which they may or may not be eligible to apply for a review of their whole life order should they wish to challenge it on the grounds that there are no longer justifiable penological grounds for their continued life detention, including the time when they can expect to be able to make such an application for a review.

In our view, while the Court of Appeal's judgment in McLoughlin significantly clarifies the law, it does not provide legal certainty about these three important aspects of the review mechanism”.

When we asked the Government,

“whether any further measures are required in order to provide the requisite degree of legal certainty”,

they responded, indicated that they were awaiting the outcome of appeal to the Supreme Court arising from one of the appellants in the McLoughlin case. The JCHR said that,

“for the review mechanism to be sufficiently certain, more specific details need to be provided … including the timetable on which such a review can be sought, the grounds on which it can be sought, who should conduct such a review, and the periodic availability of further such reviews after the first review”.

The Bill provides Parliament with an opportunity to remove any legal uncertainty by specifying the details of the review mechanism. That is what the amendment is designed to achieve. That is even more necessary than it was at the time of the JCHR report because of the inclusion by the Government of Clause 24, which makes a whole life order the usual term of imprisonment for murder of a police officer or prison officer and which may result in more whole life orders being imposed.

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Also, the European court’s judgment in László Magyar v Hungary, decided on 20 May 2014, reinforces the reasoning in the JCHR report. In that case, the European court reiterated that a whole life prisoner is entitled to know at the outset of his sentence what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought.

Our Government submitted a revised action report to the Committee of Ministers of the Council of Europe on 27 June 2014. As Members of the Committee will know, that is the body charged with securing compliance with court judgments in a supervisory capacity. In the Government’s report to the Committee of Ministers, they asked for supervision of the Vinter case to be closed on the basis that all is now clear as a matter of domestic law after the Court of Appeal’s judgment in McLoughlin.

The view of the Joint Committee on Human Rights—and, if I may say so, my view—is that that is incorrect, and the briefings from the Equality and Human Rights Commission and Justice both support the amendment. I very much hope that in his reply the Minister will be able to respond positively, because it is extremely important that the matter be understood clearly here, as well as in Strasbourg. I beg to move.

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Lord Pannick (CB): My Lords, I support everything that has been said by the noble Lord, Lord Lester of Herne Hill. I add simply one point. Amendment 7 would enact what was the practice prior to 1997, except of course that the review prior to that date was conducted by the Secretary of State and not by the independent Parole Board.

I am concerned that there is one reason and one reason only why this Government, and indeed their predecessor, removed the right to a review after 25 years and refuse to reinstate it. The reason is that, as a matter of law, such a review could not lawfully be undertaken by a Minister. The Strasbourg court has repeatedly stated that an independent person must make decisions on release. I would welcome the Minister’s comments on this, but I anticipate that the Secretary of State would be quite content for there to be a review by her or by her successors after 25 years but what she cannot accept is a review by an independent Parole Board. However, as the Strasbourg court has repeatedly stated—and it is surely right—decisions on release should be made by an independent person or body and not by a politician, however wise or experienced she may be.

Lord Lloyd of Berwick (CB): My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.

The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.

Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was

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causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.

There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.

I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.

Lord Marks of Henley-on-Thames (LD): My Lords, I add only this to the point made by the noble and learned Lord, Lord Lloyd, in answer to my noble friend Lord McNally’s response. Not only is the Joint Committee on Human Rights composed of Members of both Houses, but members of all parties agreed unanimously on this report. My reasons for supporting the amendment are threefold. First, it is a matter of simple humanity. Secondly, I agree again with my noble friend Lord Lester and the noble and learned Lord, Lord Lloyd, that I do not believe the decision of the Court of Appeal in McLoughlin has put the current position in English law beyond doubt in the light of the clear decision of what is required by the Grand Chamber of the European Court of Human

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Rights in Vinter. In any event, it is for Parliament to make the law clear on this issue. Thirdly, our obligation to honour our treaty commitments is an absolute one that must not be shirked.

My first point is the point of substance, independently of the convention: a whole life tariff without the prospect of review is incompatible with a humane approach or human rights-based approach to punishment. I remain firmly committed to the principle that one of the primary purposes of punishment is rehabilitation. This is embodied in statute law by Section 142 of the 2003 Act, which is the very Act on which whole life sentences are based. That provides, under the heading “Purposes of sentencing”, that:

“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing”,

the third of which is;

“the reform and rehabilitation of offenders”.

The imposition of a whole life order without any hope of release on rehabilitation grounds is incompatible with that statutory purpose of sentencing. It does not follow that a whole life tariff cannot be imposed by the sentencing court, but it does follow that, when sentencing, a judge should know and the offender should know that there is some prospect at least that in exceptional circumstances there will be a power to enable the offender’s release other than on purely compassionate grounds. Of course, it is understandable that in the case of the most heinous crimes the purpose of rehabilitation comes low down the list, but the absence of any possibility of review except on compassionate grounds, interpreted in the “Lifer Manual” as being, effectively, only in the case of terminal illness, removes hope completely in a way that is inhumane.

My second point is one that has been made: that the judgment of the Grand Chamber in Vinter was unequivocal. The court was absolutely clear that the effect of such an order is that a prisoner cannot be released other than at the discretion of the Secretary of State. I urge on the House the point made by the noble Lord, Lord Pannick, that the Secretary of State should not be the decider. There should be an independent body. That release would occur only on compassionate grounds under our statute. The court therefore held that a whole life order of imprisonment violated Article 3, which prohibits inhumane and degrading treatment and torture.

The United Kingdom judge, Judge Mahoney, emphasised that states were free to choose the means whereby they fulfil their obligation to “abide by” the Grand Chamber’s judgment in relation to Article 3. The Court of Appeal’s decision in McLoughlin leaves the position unclear, because the Court of Appeal appears to have held that the existing law permits release on other than compassionate grounds, contrary to the statute and to the finding of the European Court of Human Rights in Vinter. Whatever the Supreme Court may or may not do with McLoughlin, it is, I suggest, now for us in Parliament to make it clear what the law is in this crucial area and to do so in a way that unequivocally honours our treaty commitments.

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This amendment, which the JCHR recommended, respects the statutes permitting whole life orders, and requires service of at least 25 years before a review can be conducted. By the requirement for,

“such exceptional progress towards rehabilitation that a whole life order is no longer justified”,

it puts a heavy onus on the Parole Board before the board can act. The limit on reapplications ensures that the Parole Board will not be faced with a series of unmeritorious repeat applications. However, in setting out a clear framework in law for review and possible release, based firmly on rehabilitation, the amendment complies precisely with what the Grand Chamber held was necessary to comply with the convention, while exercising the latitude allowed to the United Kingdom by the court as to how to implement it.

My final point is a general one, which is frequently made in debates on human rights and other subjects in this House. The UK has a creditable record in the field of human rights and on the rule of law—one that was stressed in the excellent debate that we had in this House at the instigation of the noble and learned Lord, Lord Woolf, last Thursday. It is a record built on centuries of development of the common law. However, it is simply incompatible with respect for the rule of law for us to fail to comply with international treaty obligations, and that means proper and full compliance with decisions of the European Court of Human Rights. Flouting those decisions, based on whether we like them or not, seriously besmirches our reputation. We cannot expect our record to continue to command international respect if our present behaviour suggests that our Government do not respect decisions by which this country is bound. Nor can we expect others to respect the rule of international law if we seek to pick and choose between outcomes we like and outcomes we dislike.

Lord Davies of Stamford (Lab): My Lords, I hope that the noble and learned Lord, Lord Lloyd, was right when he said that he did not believe that any member of the Government had ever wished that the right of review for whole life prisoners should disappear. He may well be right, and I would be the last person to wish to challenge his generosity, but I have seen at very close quarters in the course of my political career how really fundamental legal principles can be eroded under the pressure of electoral and demagogic—I can use no other word—considerations. It is enormously important for us in the House of Lords, who are less prone and less open to those pressures than Members of the other place, to be very clear in our minds about the legal principles on which we really do wish to take our stand and which we think are foundational for our legal system.

I support this splendid amendment on the three grounds that have already been touched on in one way or another by those noble Lords who have spoken to it. One is that it undoubtedly increases the humanity, and therefore the justice, of our legal system, which, after all, has been inspired over the centuries by the Christian idea of forgiveness, as well as by other Christian concepts

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It also contributes to the efficiency and efficacy of our penal system, because no penal system can really work properly unless it is committed to the concept of rehabilitation. If rehabilitation is excluded or irrelevant for certain classes of prisoner, because nothing they do and no transformation of their character or behaviour can earn them any kind of release, then there is no rehabilitation for some prisoners and rehabilitation therefore ceases to be a general principle that is observed by the penal system in relation to all its prisoners as a matter of course. That leads to a degradation of the spirit and the culture of the penal system concerned, which would be extremely undesirable.

Thirdly, I very much share the view that has already been expressed that it is very important that other penal, legal decisions about the review of prisoners should be taken by independent judicial or quasi-judicial bodies—for this purpose, I accept that the Parole Board falls into that category—and under no circumstances, for the reasons that I mentioned at the outset of my intervention, by a member of the executive branch of government, open to pressures from Back-Benchers, the Daily Mail and God knows who else.

This amendment is extremely timely and I wholeheartedly agree with the view that has already been expressed that the responsibility now lies with Parliament to clarify the law, to make it absolutely clear what we believe the law should be in this particular matter, not to leave matters to the vagaries of jurisprudence, given the considerable uncertainty that has already been created, certainly in my mind, by the Minister’s statement that it is possible to interpret “compassionate” as including all sorts of issues relating to the conduct of the prisoner as well as the prisoner’s health. We are going down a route that would lead to greater uncertainty for the law and therefore greater injustice, which would be extremely undesirable. We have the opportunity to legislate clearly in this House this afternoon and we should take it.

Lord Phillips of Worth Matravers (CB): My Lords, I support this amendment. In Vinter, the Grand Chamber of the Strasbourg court made it plain that a whole life sentence that had no possibility of review, however long the defendant might be detained in prison, constituted inhuman treatment contrary to Article 3 of the convention. In explaining its decision, the Grand Chamber said at paragraph 112 that,

“if such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence”.

That passage echoes the observations of the noble Lord, Lord Marks, which I endorse.

The Strasbourg court held that the discretionary power of the Secretary of State to release a whole life prisoner under Section 30 of the Crime (Sentences) Act 1997 did not satisfy the requirement of Article 3 because of uncertainty as to when the Minister would be required to exercise that power. In so holding, it differed from a decision of the Court of Appeal in Bieber, over which I had presided, but as the House

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has heard, the Criminal Division of the Court of Appeal presided over by the Lord Chief Justice has recently disagreed with the Strasbourg court on this point in the case of McLoughlin.

The Court of Appeal said this about the duty of the Secretary of State:

“First, the power of review under the section”—

that is, Section 30 of the 1997 Act—

“arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term ‘exceptional circumstances’ is of itself sufficiently certain”.

The court went on:

“Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds … Third, the term ‘compassionate grounds’ must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis … Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review”.

One suspects that the Secretary of State may not relish being required to exercise this discretion; nor is it appropriate that the discretion should be exercised by a member of the Executive, as the noble Lord, Lord Pannick, has explained. This amendment would transfer the relevant decision to the Parole Board and define the circumstances in which it would fall to be exercised, with a precision that should satisfy the Strasbourg court.

Lord Ramsbotham: My Lords, I support the amendment and in particular the intervention made by the noble Lord, Lord Marks. In doing so, I remind the Committee of one group of people whom I mentioned during the debate to which my noble and learned friend Lord Lloyd referred. I refer to prison staff. I am glad that the noble Lord, Lord Marks, mentioned the word “hope”, because when I inspected prisons in which full life tariff prisoners were held, their governors made the point to me that the fact that those cases could be reviewed, which was not necessarily the same as that they might be released, gave the prisoners hope and therefore enabled them to conform with the prison regime. That was vital for the purposes of the prison staff who had to maintain the regime. It is important in considering this that the role of the staff should not be forgotten.

Lord Hope of Craighead: I want to add a footnote to the points made by the noble and learned Lord, Lord Phillips of Worth Matravers, based on my own experience. I became the Lord Justice General of Scotland about 25 years ago. At that time, one of the sentences that was available to a trial judge was a discretionary sentence that a person would be detained without limit of time. It was not a sentence of life imprisonment, but was in effect, as it was put in the case of young offenders, detention at Her Majesty’s pleasure; that is, at the discretion of the Secretary of State.

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While I was holding that office, Strasbourg began to pronounce on the compatibility with Article 3 of that kind of system. It was decided in Scotland that the system was no longer maintainable, and what was required of me as Lord Justice General was to examine the cases of all those who had been given that kind of sentence to provide them with a tariff—or, in the Scottish terminology, a punishment part—which would set the date as from which their cases might be considered by the Parole Board. Until that was done, it had been entirely at the discretion of the Secretary of State, and it was thought that that was improper. The system that was devised was to require a judge to review such cases, recognising, as others have suggested today, that it would be incompatible with the convention for the decision to be left with the Secretary of State.

It was a very unpleasant exercise for me as the people who had received those sentences had committed the most appalling crimes. In comparison with life sentences, which sometimes were relatively simple, these people deserved the most condign punishment. Nevertheless, it was decided that they required some kind of certainty, removed from the discretion of the Secretary of State, so that they could plan their time in prison and there could be some method for review. It was not of course for them to be automatically released; that was not the point of it. It was so that their time in prison could be subject to a regime which would give them, as was said by the noble Lord, Lord Ramsbotham, some reason for hope that, possibly, in the very long term and in exceptional circumstances, they might be released.

The system being put forward in this amendment is therefore very similar in principle to one which was introduced about 20 years ago in Scotland to cure a similar problem about leaving the matter to the discretion of the Secretary of State. For that reason, I, too, support the amendment as being sound in principle.

Lord Elystan-Morgan (CB): My Lords, seldom can there have been such an array of distinguished supporters for any amendment, and all I seek to add is some very short footnotes.

There are principles of immense worth and significance that are associated with this issue, one of them being, as so many speakers have pointed out, that there is no such thing as an irredeemable prisoner. I remember the very first day that I came here, which was about 33 years ago. A very distinguished judge had said that, in his vast experience, he had not thought that prison had reformed anybody at all. I remember thinking then about the exact wording of Rule 1 of the Prison Rules 1964. The wording was that the prime purpose of punishment should be the reform and rehabilitation of the prisoner. That is not now placed quite as high—it is now third on the list—but it still occupies a prominent place. To deny the prospect, remote though it might be, of redemption and the even more remote prospect of release—this will operate only in a very few circumstances—would be to deny one of the basic tenets of our concept of justice and punishment.

4.15 pm

The noble Lord, Lord Davies, said that it is dangerous that a political officer—that is essentially what the Home Secretary is—should have this awesome jurisdiction

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in his or her hands and that such a person is open all the time to political pressure. I am not sure that that point is totally fairly made. It is not a question of whether such a person is open to political pressure but whether he is the right sort of person, holding the right sort of qualifications, to make that decision at all.

I was a junior Minister in the Home Office about 46 years ago, so I well understand how Home Secretaries have said to themselves, “This office has been the repository of substantial judicial discretion from time to time”. One has to think only of the awesome power that a Home Secretary had to determine whether a person should be executed or have the sentence commuted to a life sentence. Therefore, there is that tradition, which it may be difficult to shed overnight; I understand that. Nevertheless, it has to be shed, because it is a decision that must be made by a judicial or quasi-judicial body and nothing else.

Lord Beecham: My Lords, I must confess that I am somewhat puzzled by the position outlined in the JCHR report and what the noble Lord, Lord Lester, referred to as the Government’s recent pronouncements on it. As he rightly said, the report indicated that the Government would be awaiting the outcome of the appeal in McLoughlin before updating the Committee of Ministers of the actions that they plan to take to implement the Vinter judgment—which implies that the Government are planning to implement the Vinter judgment, but in ways as yet undetermined.

I am sure that the Minister will be able to enlighten us about whether that is in fact the Government’s intention and, if so, what approach they will be taking. If they are awaiting the outcome of that appeal before coming to a conclusion, that is not an unreasonable position for them to take, but the underlying question is whether they intend to implement the Vinter judgment as indicated in whatever decision the Supreme Court ultimately makes on the details of the McLoughlin appeal.

I am also uncertain about the interesting reference that the noble and learned Lord, Lord Phillips, made to a wider meaning of “compassion” and whether that would be a criterion for release. Is that something that the Government are in fact contemplating? Might that form part of their response to the Committee of Ministers in relation to Vinter?

These are difficult cases, and one must hope that we can reach the position where we are not in conflict with the court but that, nevertheless, the balancing interest of public safety is also given due weight. For the Opposition’s part, we await the Government’s response in general and the Minister’s response in particular this afternoon.

Lord Faulks: My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in

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particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.

However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.

I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.

The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.

The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:

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“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.

The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:

“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.

The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.

The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.

The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.

Lord Lester of Herne Hill: My Lords, I am grateful to everyone who has spoken in this extraordinary debate, including the Minister. One has to bear in mind that under Article 46 of the convention there is a duty on the UK to abide by the final judgment of the Strasbourg court in the British case. That duty must be performed not just by the Government, thank goodness, but by Parliament and by the judiciary. When the Committee of Ministers of the Council of Europe—that is, 47 Governments, including 46 that will be looking at this debate and particularly at what the Minister has just said—next meets to scrutinise whether the UK has in fact properly complied with the judgment, it will no doubt read the debate, including the Minister’s reply, and the report of the Joint Committee on Human Rights with some interest. It will note that three of those who have spoken contrary to the view of the Minister have all exercised judicial power in our apex courts, the House of Lords and the Supreme Court, including the President of the Supreme Court, and they will view with some surprise the notion that the Minister’s view of the Court of Appeal judgment is somehow more significant when looking at the

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matter than the views of those extremely distinguished jurists, all of whom, as I say, have exercised judicial power at the very apex of our legal system.

I simply do not understand how the Government think they can get away with it. They have already spent years and years, like their predecessors, in trying to get away with their refusal to abide by the final judgments in the prisoners’ voting rights case. By a strange quirk of life, I go to the Committee of Ministers every quarter. I shall not be at the next one but I usually go there because I am deemed to be Cypriot, for the purposes of the Cyprus/Turkey dispute. I observe what happens, without speaking, in the British cases. I have to say to the Minister, who has not had that experience, that our reputation at the moment is right at the bottom. Everyone I speak to—ambassadors, judges, civil servants in Europe—view with astonishment the fact that we now have a Minister of Justice, a Home Secretary and a Prime Minister who feel sick when they read judgments of the Strasbourg court and say so, and who threaten to tear up the convention or, rather, to withdraw from the court’s jurisdiction and the Human Rights Act. One cannot imagine quite what it is like to have lived through a period when the United Kingdom had such a fine international reputation and then to find that the pseudo-democracies of Europe—the dictatorships and totalitarian regimes—say, “If the United Kingdom can do this so can we”.

The JCHR said that this was a probing amendment, and that is what it is, but it is an extremely valuable probing amendment because those experts on penal reform, such as the former Chief Inspector of Prisons, the noble Lord, Lord Ramsbotham, and distinguished human rights advocates, within the law or in some other occupation, have all spoken in the same way. I have no doubt that the Government will not get away with it and that the Committee of Ministers will not close the matter, as the Government are now saying, but will demand further explanations. Having said all that, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

4.30 pm

Clause 5: Sentence and Parole Board release for offenders of particular concern

Amendment 8 not moved.

Clause 5 agreed.

Schedule 1 agreed.

Clause 6: Electronic monitoring following release on licence etc

Amendment 9

Moved by Lord Marks of Henley-on-Thames

9: Clause 6, page 5, line 35, leave out subsection (3)

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Lord Marks of Henley-on-Thames: My Lords, the purpose of this amendment is quite simply to remove the power proposed in the Bill by Clause 6(3) to provide that the power to impose an electronic monitoring condition be mandatory. Amendment 14, which is also tabled in my name, is consequential upon Amendment 9.

The Committee will no doubt quite understand that the effect of subsection (2) is to amplify and explain the Secretary of State’s power to impose an electronic monitoring condition on the release on licence of prisoners. That is a desirable and sensible condition to be imposed where appropriate. The idea that by subsection (3) a new Section 62A is added to the Criminal Justice and Court Services Act 2000 giving the Secretary of State power by order to make it compulsory to impose an electronic monitoring condition evades explanation, I regret to say. The power under Section 62 already gives the Secretary of State power to make rules about the conditions for the imposition of such a condition. I simply invite the Minister to explain why the fetter on the Secretary of State’s future discretion is needed.

There may be cases where an electronic monitoring condition is not required or is inappropriate. I take as an obvious example the case of a prisoner who is disabled or is to be hospitalised on release. That is recognised in Section 62 as it stands. Making an electronic monitoring condition compulsory seems a retrograde step depriving a Secretary of State who brings it in by order and any future Secretary of State of the power or the right to exercise discretion not to make such a condition in appropriate cases. The amendment is a simple one, and the issue is a simple one. I beg to move.

The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD): My Lords, if Amendment 9 is agreed to, I cannot call Amendments 10 to 12 inclusive by reason of pre-emption.

Lord Beecham: My Lords, tagging—or electronic monitoring, to give it its official title—is potentially a useful tool in cases where it is necessary to protect the public by, for example, prohibiting contact with named individuals, imposing a curfew or restricting access to particular places. Even so, we are all conscious of the appalling experience with the Government’s favoured all-purpose contractors, G4S and Serco, which resulted in the repayment by those companies in the end of £214 million, roughly equivalent to the total of a year’s savings engendered by cuts to legal aid. Clause 7 takes us, as we have heard from the noble Lord, Lord Marks, into new territory with the extension of the use of this system to prisoners on licence, and that on a mandatory basis. The Chief Inspector of Prisons has been highly critical of this proposal, since in the absence of evidence of absconding or committing offences while on licence this is not, in fact, a significant problem. What is the evidence on which this proposal is based and what is the cost of the equipment and the necessary monitoring? The impact assessment states:

“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage … As such, we are unable to calculate impact”.

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That is an extraordinary basis on which to import into this legislation a mandatory requirement. It seems, as an approach to legislation, to be matched only by the Home Office’s approach to record keeping.

Dan Jarvis MP, my honourable friend in the Commons, has identified some significant risks. They include the possibility that the technology might not be capable of delivering the service at an economic cost. The use of tagging might not have the anticipated deterrent effect. The new licence conditions might lead to an increase in breaches, such as not wearing the tag, which could lead to more prison places being required. On the latter point, the impact assessment rather weakly admits that the number of additional prison places required, “cannot be accurately estimated”. If ever the Government’s own impact assessment has made the case for properly piloting a provision, this is clearly such a case. Moreover, there is widespread concern about making this a mandatory condition, something that is at odds with the whole purpose of release on licence, which is to help offenders reintegrate into society. One has to ask whether making it mandatory is a provision dictated by the potential contractors’ need for an assured case load and associated financial returns rather than any substantive merits of the procedure.

There is also the unacceptable position that the Secretary of State may impose a code of practice especially about the data acquired through the process without parliamentary approval. The Joint Committee on Human Rights regards safeguards in relation to the collection and storage of such data as crucial. Where are we in relation to the drafting of a code? Amendment 12 deals with this issue.

Amendment 13 calls for an early review of any scheme in order to assess its actual impact on individuals, on reoffending, and on cost. Amendment 11, which we seek to repeat in Amendment 44 applying to secure colleges, would make the contractors subject to freedom of information procedures. Last year, the Information Commissioner asked the Justice Committee, in this respect, if more and more services are delivered by alternative providers which are not public authorities, how do we get accountability? This is particularly relevant in the context of the justice and penal systems, where there have been too many worrying failures and instances of quite disgraceful treatment of prisoners and detainees by such contractors. If, as is quite right, state prisons are subject to the Freedom of Information Act, what possible reason could there be for excluding other providers, including those who are to provide the tagging mechanisms here?

I hope that the Minister can deal with some of these questions, as well as the points of substance raised by the noble Lord, Lord Marks. It is absolutely impermissible for these powers simply to be imposed by order, and on the basis of such flimsy evidence as the Minister produced, to support the extension in the way that the Bill prescribes.

Baroness Kennedy of The Shaws (Lab): My Lords, I know that it is normal that the Front Bench on this side finishes any debate before the Minister answers, but I really have a bad feeling about the clause and I want to support the amendment. The provision smacks to me of the outcome of lobbying by those who will

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have highly remunerative contracts, if it comes to pass. We are not hearing any costings on this, and I would very much like the Minister to tell us what it is going to cost the public purse. As others have said, there are circumstances in which it is very useful to tag someone when there are concerns about whether they might not respond to the ordinary inhibitions on their liberty during a period of parole, but I am concerned about it being used in this wide way. Behind the provision is the lobbying by those private sector companies that now make a great deal of money out of this very kind of thing. Have any costings been done? How much will it cost the public purse?

Lord Ponsonby of Shulbrede: My Lords, I want to pick up on the point that my noble friend Lady Kennedy of The Shaws has made and speak to Amendment 13, on the review of this extension of tagging. My honourable friend Dan Jarvis made the point in the other place about possible unforeseen consequences of this extension. I was talking to a magistrate colleague of mine only last week, and she pointed out to me that the new GPS tags are physically much larger than the existing tags used today. That means that they are possibly easier to remove—but there is another possible consequence, in that they need charging much more often. The existing tags do not need recharging because the battery lasts for the length of the period that the person is tagged. Potentially, that raises a whole series of issues with offenders—people out on bail or offenders in the case that we are now discussing—who are not properly recharging their GPS-driven tags. My understanding is that they would have to do it by an induction loop; it would not be a physical connection. That could raise a lot of unforeseen consequences, which is why I reiterate my support for Amendment 13, so that it can be looked at when the provision comes into force.

Lord Ahmad of Wimbledon (Con): My Lords, the effect of Amendments 9, 10 and 14 would be, as my noble friend Lord Marks said, to remove from the Bill the provisions which would allow for compulsory electronic monitoring conditions to be imposed on offenders on release from custody. This would leave the use of these conditions on a discretionary basis, as they are now under the Criminal Justice and Court Services Act 2000. I understand that there are some concerns about how these powers will be used. Therefore, it may be helpful if I take some time to explain how the provisions would work and why the Government consider them necessary and important in our drive to deliver a more effective sentencing and rehabilitation framework.

I emphasise that legislation has been in place for some years to provide for the use of electronic monitoring as a condition of release, both to monitor compliance with other conditions, such as curfew or exclusion conditions, and to monitor the offender’s whereabouts as a condition in its own right. The limitations of the current technology have meant that, in practice, electronic monitoring has been used so far simply to monitor compliance with a curfew. However, we are reviewing the electronic monitoring contracts, which provides us

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with the opportunity to take advantage of new, cutting-edge technology that will enable us to track offenders in the community.

4.45 pm

The new development should enable us to give better protection to victims. Monitoring offenders’ whereabouts will enable us to enforce exclusion zones effectively. In addition, the removal or attempted removal of the tag—which the noble Lord, Lord Ponsonby, referred to—will raise an immediate alert and the offender can be recalled to custody, if appropriate. The noble Lord also referred to size and other technical elements. If further details are available, I will, of course, write to him.

Location monitoring should also act as a deterrent to further offending. The offender will know that he or she can be placed at the scene of a crime. The information gathered can be shared with the police, if appropriate, making the investigation of crimes more efficient. We consider, therefore, that it is only sensible to take the necessary powers we need to enable us to make the best use of these developments.

Clause 6 provides for a compulsory electronic monitoring condition to apply to offenders who are released from custody subject to conditions—for example, on licence. The clause provides flexible order-making powers. This will enable the Secretary of State to target and prescribe compulsory conditions in various ways. For example, an order may prescribe which offenders must be subject to compulsory electronic monitoring by type of offence, or by type of sentence. We are also providing for the possibility of random sampling for the purposes of pilots.

I am aware that there are concerns that there may be offenders who are unsuitable for compulsory electronic monitoring, as my noble friend said. This may be because of physical or mental health issues, or there may be a practical problem such as not being able to make arrangements for the offender to recharge the battery in the tag. The clause also covers these circumstances as it specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply.

For completeness, I should say that the compulsory licence condition may apply to any adult offenders released subject to conditions. That includes release on temporary licence and home detention curfew as well as standard release licence conditions. Young offenders serving a public protection sentence and released subject to conditions may be subject to compulsory electronic monitoring conditions. However, for other custodial sentences, electronic monitoring conditions will remain discretionary for young offenders.

Amendment 12 would require the code of practice relating to the retention and sharing of the data gathered by location monitoring to be subject to affirmative secondary legislation. The code of practice is intended to make sure that the necessary safeguards are in place for the proper management of this information. This will, therefore, be an important document. However, it is primarily for operational purposes and, as such, is not intended to introduce any new legal requirements.

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That is why we do not propose to agree its content through parliamentary procedure. It will, of course, comply with the Data Protection Act 1998, but we have committed to consultation on the document, and I assure all noble Lords that that will include consulting the Information Commissioner. The code of practice will also be published.

Amendment 13 provides for a review of the operation of electronic monitoring, in particular to assess the impact of compulsory conditions, within 12 months of this clause coming into force. The clause itself does not, of course, allow the imposition of compulsory electronic monitoring conditions. That can be done only when the order-making powers are used. Twelve months is too short a period to determine any impact on reoffending, but providing for a review within 12 months of the coming into force of the enabling power would tell us even less.

That issue aside, we already have some evidence of the impact of tracking offenders from a pilot in three probation areas in 2004 and 2005. The evaluation found qualitative evidence to show that it: acted as a deterrent because offenders thought that they would be caught if they were to reoffend; was a constant reminder which prompted offenders to think twice when a criminal opportunity presented itself and gave them the spur they needed to walk away; provided offenders with renewed determination to get their lives back together after a period of incarceration; and was perceived by offenders to help stop wrongful identification for crimes they had not done.

There is also some international evidence, in particular from the United States. For example, quantitative analysis carried out in Florida in 2011 on 5,000 medium and high-risk offenders showed decreases in the recidivism rate for all groups of offenders, which were similar in scale for all age groups.

We will not be using the powers provided until the technology has been fully tested, and we are taking powers to roll out compulsory conditions in various ways. This will allow us to learn what works best for different offenders in order to target compulsory electronic monitoring to best effect.

The noble Lord, Lord Beecham, and the noble Baroness, Lady Kennedy, raised the issue of costs—and there are concerns about cost—and the management of the new contracts. We are currently reviewing our electronic monitoring contracts and are confident that this competition will result in the development of state-of-the-art tracking technology. We cannot, however, estimate the costs in advance of the contracts being awarded, and we will manage the new contracts robustly to ensure that they deliver the best possible value for taxpayers. I assure noble Lords that contracts have not yet been awarded; therefore, we cannot give firm dates for the awards now. We intend to tell Parliament as soon as the contracts are signed. Given that the competition is still live and contracts are yet to be awarded, it is not possible to give further details now about costs or when they will be incurred.

I hope that I have demonstrated that there are safeguards to ensure that compulsory conditions are not imposed inappropriately, and that the code of practice will be subject to proper scrutiny without the

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need for a parliamentary process. I hope that I have also explained why we are taking these powers and the benefits we anticipate from their use.

We must be ready to use innovative ways of managing offenders in the community. It is an important element in our strategy to improve public protection, reduce reoffending and assist in the successful detection and prosecution of crime. Based on my assurances, I hope that the noble Lords will not press their amendments.

Baroness Kennedy of The Shaws: Before the Minister sits down, perhaps I may ask a question. Was there lobbying by security companies to have this change in law introduced so that it would be compulsory for all prisoners on licence to have tags placed on them? Was there lobbying to create this change in law?

Lord Ahmad of Wimbledon: The noble Baroness asks a pertinent question. Representations are always made in any part of government, but the Government are, as I hope I have indicated, taking these steps forward in line with the concerns that exist and based on the evidence that I have presented to the Committee today.

Lord Beecham: With respect to the Minister, he may not be able to answer the question that my noble friend has asked without advice from the Box or elsewhere; but he has not even purported to answer the question. The question is a legitimate one. Perhaps he would undertake to reply to my noble friend and let her and the Committee know whether those who are likely to benefit from these contracts lobbied for this provision to be mandatory.

Lord Ahmad of Wimbledon: Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.

Lord Marks of Henley-on-Thames: My Lords, a great deal of what my noble friend has said in response to these amendments is entirely uncontentious. As I hope I have made clear, I have no objection to discretionary electronic monitoring of prisoners on licence, and no objection to improved tracking, technical improvements or effectiveness. I quite understand everything he said in that score.

My concern was with the element of compulsion added by new subsection (3). I regret that I simply did not understand my noble friend’s response on its drafting. He said that there was somehow a discretion in the order-making power under new subsection (3) that would enable the Secretary of State to take into account cases where it would be difficult, inappropriate or not sensible to impose electronic monitoring. It may be that we are talking about a matter of drafting. In that case, I urge my noble friends to look at the drafting.

New Section 62A provides:

“The Secretary of State may by order provide that the power under section 62 to impose an electronic monitoring condition must be exercised”.

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The description of the order-making power states:

“An order under this section”—

which is an order that the monitoring condition power “must be exercised”—

“may … require an electronic monitoring condition to be included for so long as the person’s release is required to be, or may be, subject to conditions or for a shorter period”,

and may,

“make provision generally or in relation to a case described in the order”.

It may be that my noble friend is referring to the entitlement to make provision generally as imposing a discretion. If he is saying that, I would suggest that that no longer complies with the description under new subsection (1) of an order imposing “an electronic monitoring condition” which “must be exercised”. Furthermore, even if he were right that that would somehow allow electronic monitoring conditions not to be mandatory, I would respectfully suggest to him that that is a clunky way of providing for particular cases to be dealt with in accordance with the discretion, which is what I suggest ought to be maintained. However, on the basis that my noble friend will consider the drafting, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Amendment 11

Moved by Lord Beecham

11: Clause 6, page 6, line 29, at end insert—

“(1A) The code of practice must include a requirement that a person carrying out electronic monitoring who is not a public authority as defined by section 3 of the Freedom of Information Act 2000 shall provide information in respect of the carrying out of electronic monitoring in the same manner as if they were such a public authority.”

Lord Beecham: My Lords, the amendment addresses the growing trend of government to outsource the provision of public services to private contractors. Something like £95 billion a year is now tried up in such contracts. They cover a whole range of services, but the Ministry of Justice has been at the forefront of this development in public policy. One thinks of the controversial issue of probation, which we have debated at length, notwithstanding the Government’s initial decision not to include it in legislation. We also have the experience of a number of private prisons—certainly under the previous Government as well, but now clearly to be promoted even further. We have for some time now seen court staff provided to magistrates’ courts and elsewhere by private contractors. We have had the shambles of the interpreter service, again in the hands of contractors. In the Bill we have, as we have already heard this afternoon, provisions about tagging. We will come in due course to the controversial provisions about secure colleges.

Public providers still operating in some of these areas, such as in the case of prisons, have to comply with the provisions of the Freedom of Information Act, but the private contractors do not. That strikes many as a complete anomaly. Why should a private

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prison such as the Acklington prison in the north-east of England, where I come from, which has experienced great difficulty since privatisation, not be subject to FoI requests when one of Her Majesty’s prisons, perfectly properly, is? Why should those who look after certain detention centres for asylum seekers be immune from FoI requests, particularly given the constant flow of unfortunate stories that we hear from such places, while a public institution is, perfectly properly, accountable? I have already quoted the Information Commissioner’s comments in addressing the Justice Committee last year, but I will repeat them. He asked,

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

Even the Prime Minister is on record as being in favour of transparency. A couple of years ago, he spoke about the power of transparency and why we need more of it. He also spoke of leading the most transparent Government ever. Transparency, of course, has a number of meanings and one can accept that, in a certain respect, his Government is exceedingly transparent—but it is not particularly transparent when it comes to the letting of contracts, particularly to these third-party organisations.

My honourable friend Dan Jarvis said in a debate in Committee on the Bill:

“The rewards that third parties stand to gain need to go hand in hand with the duties of transparency and information sharing. The public should be able to ask … how, and how well, the service they are paying for is being run”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 187.]

The Labour Party has pledged to extend the FoI legislation to contractors of public services. Why will the Government not at least match Labour’s pledge to do likewise and extend the freedom of information provisions to these companies, which are carrying out important and, in many cases, extremely sensitive areas of public provision? It would appear that those companies are essentially immune to the same processes that would apply if they had remained in public hands. Particularly given the great concern about the developments in the probation service, it is not time that the Government acknowledged that there is force in this argument and, accordingly, accepted the amendment? I beg to move.

5 pm

Lord Ahmad of Wimbledon: My Lords, Amendment 11 seeks to impose a requirement on providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act 2000. It does this by introducing a requirement as to the contents of the code of practice that the Secretary of State will issue under new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. The amendment would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FoI requests and proactively through publication schemes.

I assure the Committee that the Government recognise that there are concerns about the position of private providers of public services under the Freedom of Information Act. As noble Lords may know, the issue

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of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act, carried out by the Justice Select Committee in 2012. The committee recommended the use of contractual provisions, rather than the formal extension of the Freedom of Information Act, to ensure that transparency and accountability are maintained. In particular, the committee said that it believed,

“that contracts provide a more practical basis for applying … outsourced services than partial designation of commercial companies under section 5 of the Act”.

The committee also felt that,

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

The Government accepted the committee’s recommendation and later this year will issue a revised code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. The new code will promote and encourage the use and enforcement of contractual obligations to ensure that contractors provide information held on behalf of public authorities. It will also encourage contractors voluntarily to provide additional information beyond that held on behalf of the contracting public authority where, for example, doing so would help the contracting public authority to provide a more meaningful response to requests.

The Government and the Information Commissioner, referred to by the noble Lord, Lord Beecham, will monitor the effectiveness of the new code. If it does not prove successful, the Government have said they will look at going further, including potentially extending FoI formally to contractors—again, a point made by the noble Lord, Lord Beecham. We believe that our approach represents an appropriate balance between transparency and minimising burdens on business. As a result of these steps, I would argue that the measures proposed through these amendments are unnecessary. Based on the explanation and assurance I have given, I hope the noble Lord will be minded to withdraw his amendment.

Lord Beecham: My Lords, I will not press the amendment at this stage, but it is not clear to me why there should be two separate systems, one for private contractors and one for public agencies. The opportunity to raise an FoI request is open to anybody and should apply equally to the two different types of provider.

The Minister and his ministerial colleague in the House of Commons referred to the production of a code of practice. Once again, we are being asked to legislate in a vacuum because we have not seen the code of practice. Nor is it clear whether that code of practice will be subject to parliamentary approval. Perhaps the Minister can indicate whether that would be the case.

However, even if it were subject to parliamentary approval, I still do not see the logic in having two separate systems for the provision of like services, depending on which provider is carrying them out. Surely that will not assist members of the public. It must be difficult for them, as it is for me, to comprehend why there should be two parallel systems when they

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are looking not so much at the provider as at the nature of the service and any potential problems that might arise.

If the noble Lord cannot deal with that today, perhaps he will consider writing to me—again, sending that reply to the Library—otherwise, this is a matter to which we may well have to return on Report. In the circumstances, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12 not moved.

Clause 6 agreed.

Amendment 13 not moved.

Schedule 2: Electronic monitoring and licences etc: consequential provision

Amendment 14 not moved.

Schedule 2 agreed.

Clause 7: Test for release after recall: determinate sentences

Amendment 15

Moved by Lord Beecham

15: Clause 7, page 7, line 2, at end insert—

“(4B) In considering whether the person is highly likely to breach a condition included in the person’s licence, the conditions shall be reviewed and amended as appropriate to ensure that the person is able to comply.”

Lord Beecham: My Lords, I shall speak also to the Question whether Clause 8 stand part of the Bill.

This amendment refers to the provisions in Clauses 7 and 8 dealing with the test for release after recall in the case of determinate sentences. The amendment requires the Secretary of State and the Parole Board to consider, in addition to other factors currently applicable in determining whether a recall prisoner is suitable for automatic release or rerelease when subject to discretionary release, whether the offender is “highly likely” to breach his licence condition. That is the thrust of the Bill as it stands.

At present, the principal consideration is whether release would involve a risk of serious harm to the public. Clause 8 empowers the Secretary of State to change the test by means of an order subject to affirmative resolution. Left as it stands, the “highly likely” test looks to be subjective, and that impression is enhanced by the failure to consider and provide for factors which might contribute to the outcome of a decision to release.

Similar issues arise in relation to the new offence of remaining at large after recall in Clause 10, to which we will come later. As in that case, what is missing is an assurance that the necessary support will be given to vulnerable offenders, especially those with, for example, mental health problems or learning disabilities which

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seriously impair their capacity to understand even common terms such as “victim” or “breach”, as affirmed in the helpful briefing provided by the Prison Reform Trust. A substantial proportion of prisoners suffer from conditions that affect their capacity precisely to understand the conditions that might be laid upon them or otherwise to conduct what for ordinary citizens would be a simple lifestyle.

The Prison Reform Trust points out that conditions in relation to release and supervision need to be appropriate to the intellectual ability and understanding of the offender in order to comply with the obligations of the Equality Act 2010. It is unclear whether the Government have considered the applicability of the Equality Act to this provision and whether they consider that the provision passes the test.

Amendment 15 would therefore require the conditions in a person’s licence to be reviewed and amended from time to time to ensure that the person is able to comply—that is, that he has the faculties to allow him to comply—and that will usually involve the provision of relevant support for the prisoner in preparing for release and during the period of release. Amendment 16, which we covered earlier, would require the Secretary of State to,

“consult with the Parole Board about the resources”,

and report to Parliament on them, required to deliver that degree of support.

Clause 8 is an unsatisfactory provision inasmuch as it empowers a change in the test by secondary rather than primary legislation, as I pointed out at Second Reading. The noble Baroness, Lady Linklater, who is not her place, put the case even more strongly. She said that the clause gave the Secretary of State,

“an unacceptable degree of power”.—[

Official Report

, 30/6/14; col. 1593.]

She said that, for that reason, she hoped the House would join her in a stand part debate in relation to Clause 8, thereby restoring the current position, which is that change should be effected by primary legislation. It is regrettably a notable feature of this Bill that, as Justice points out, it creates no less than 30 new delegated powers, of which only eight require approval by affirmative resolution.

That is particularly objectionable in a case where individual liberty is at stake. Albeit that it is conditional liberty because it is release on licence, such is the case with the provisions that we are now debating. I hope very much that the Government will reconsider this. Perhaps, the Minister could indicate what the Government take to amount to the conditions of a test of high likelihood that the Bill expresses as a condition.

There are therefore two grounds for my amendments. The first is the requirement to ensure that the individual can cope with the conditions, and be prepared for them and supported in them. The second is to do with the parliamentary process to ensure that there is proper parliamentary scrutiny by way of primary legislation before changing a test which will interfere with the liberty of the subject. I beg to move.

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Lord Ramsbotham: My Lords, I support what the noble Lord, Lord Beecham, has said. What concerns me most about Clauses 7 and 8 is that there appears to be no relevant impact assessment of what this means, not just in terms of the numbers of people who will be recalled but in terms of the numbers of people who are sentenced to short-term imprisonment followed by 12 months’ supervision in the community. The overall impact assessment tells us that there will be no impact from the provisions following the Offender Rehabilitation Act, but the impact assessment on Clause 7 says that there is a risk that short-term prisoners in their 12 months’ supervision might impose an impact. That means, as we know, that those prisoners are particularly likely to breach. It is assessed that there could be up to 13,000 short-term prisoners breaching, which will impose a considerable strain on the Prison Service. I ask the Minister whether this impact assessment has been worked out. It seems to me to be quite improper for us to pass an amendment without knowing what the impact will be.

Lord Ahmad of Wimbledon: My Lords, as the noble Lord, Lord Beecham, explained, the amendment seeks to require the Secretary of State to review the offender’s licence conditions before deciding whether a recalled determinate sentence prisoner should be subject to discretionary re-release, rather than automatic re-release, on the grounds that the offender is highly likely to breach a condition of their licence if so released. I presume that the aim is to ensure that recalled offenders have not been set up to fail through the imposition of inappropriate licence conditions and then suffer the consequences.

The purpose of this clause is to target those offenders who, while not presenting as a high risk of harm, have persistently failed to comply with probation supervision and any reasonable conditions that have been placed on their licence. More often than not, they are offenders who lead chaotic lives and persistently reoffend. They are offenders who are assessed as highly likely to breach their licence conditions on their re-release after 28 days in custody, thereby resulting in almost immediate further recall.

5.15 pm

We do not believe that there is any useful purpose in releasing and then recalling in quick succession. By giving these offenders a recall subject to discretionary re-release, it underlines the need for their compliance and places the onus on them to demonstrate while in custody that they are prepared to co-operate with those responsible for their supervision in the community. In short, I reassure the Committee that we want to ensure that supervision on licence is as effective as possible and supports the aim of keeping offenders in the community both to rehabilitate them and to reintegrate them into society, which is a principle that I know noble Lords share.

The focus of the clause is to make sure that those offenders who wilfully and deliberately flout their licence conditions are dealt with appropriately. That said, the clause contains precisely the safeguards that the amendment is aimed at and those alluded to by the noble Lord, Lord Beecham. It provides for the Secretary of State to focus on whether an offender is highly

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likely to continue to breach conditions that are deemed necessary and proportionate. This would, for example, take account of any change in the offender’s circumstances that has for some reason rendered a particular licence condition unsuitable. But we must address the position where offenders wilfully breach their licence conditions and make sure that we protect the public from further offending. I hope that I have been able to provide some reassurance to noble Lords about the operation and intention behind Clause 7.

On the issue raised by the noble Lord, Lord Ramsbotham, on the Offender Rehabilitation Act, under that Act those serving less than 12 months who breach their licence conditions can be recalled to prison for a fixed period of 14 days. It is possible in some cases, for example, that where an offender has also received a couple of 14-day recalls, they will meet the new test for a standard recall and become liable to be held for the remainder of their licence period. Of course, with sentences of less than 12 months, the licence period will be very short, so the impact of receiving a standard recall will not be very different from continuing to receive fixed-term recalls. In other words, the impact of the new test for release following recall will be greater for those serving longer sentences, but for very short sentences it will be different from the impact of current recall provisions.

The equality impact assessment was raised by the noble Lord, Lord Beecham, and referred to by the noble Lord, Lord Ramsbotham. We have fully considered the equality impact of this clause. In the drafting, we are in compliance with our obligations under the Equality Act 2010.

Clause 8 makes provision to allow the test for recalled prisoners—the public protection test and the risk of further breach test—to be amended as well. Like the existing power, its exercise may prove necessary in response to a change in the nature and profile of the prison population, or where the wording of the test may no longer properly capture the cases that it is aimed at. I note the concerns raised by the noble Lord, Lord Beecham, about primary and secondary legislation, but in secondary legislation this power will be subject to the affirmative resolution. As noble Lords know, that will allow both Houses to have the opportunity to scrutinise any proposed change to the release test and Members will be invited to approve it.

Based on the comments that I have made and the assurances that I have given, I hope that, if not totally, I have in part addressed some of the concerns of the noble Lord.

Lord Beecham: I thank the Minister for his helpful reply and will look carefully at the record to see whether it is necessary to bring matters back on Report. However, I emphasise that the Opposition as a whole—and, I suspect, other members of the Committee—are reluctant to confer on the Government order-making powers of a kind that would interfere with the liberty of a subject without primary legislation to establish them. However, that is a matter that we may consider at a later stage. In the circumstances, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

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Amendment 16 not moved.

Clause 7 agreed.

Clause 8 agreed.

Clause 9: Initial release and release after recall: life sentences

Amendment 17

Moved by Lord Lloyd of Berwick

17: Clause 9, page 10, line 12, after “prisoners),” insert—

“(a) after subsection (2) insert—

“(2A) Without prejudice to the powers of the Secretary of State under this section, the Parole Board must direct the release on licence of IPP prisoners with a minimum tariff of less than two years.”,”

Lord Lloyd of Berwick: My Lords, this amendment concerns prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. The section was repealed in 2012, but there is a backlog of some 5,200 prisoners still serving sentences under it, of whom 3,600 have passed their tariff. At the present rate of release, which is running at about 400 a year, it will be nine years before those 3,600 will be out of prison.

This amendment concerns a particular group of prisoners who were given short or very short tariffs between 2005 and 2007, before the 2003 Act was amended. There are 773 of them. There is also a smaller group who were given tariffs of less than two years after the Act was amended in 2007 and are serving their sentences under different provisions, but this amendment is not intended to affect them. There are good reasons for distinguishing between these two groups: first, the 773 to whom I have referred have been in prison much longer; secondly, we know more about them; and thirdly, and most importantly, they were sentenced before the Act was amended, when judges had no real discretion as to the sentence. They were bound to assume dangerousness if certain conditions were fulfilled and were bound then to impose an indeterminate sentence. The word was “must” and not “may”.

I have a breakdown of how long the 773 have already been prison. It is dated March 2013, and they have of course spent a further 15 months in prison since then. On that basis, 275 of them are now more than six years over tariff, 291 are more than five years over tariff and 198 are more than four years over tariff. I remind noble Lords that these are all prisoners who were given tariffs of under two years, some as little as nine months or even less. I will give your Lordships examples of the sorts of offences that these prisoners committed. In April 2005, Mr Lee was given a tariff of nine months for criminal damage to the flat in which his former wife and children were living. In November 2005, Mr Wells was given 12 months for attempted robbery of a taxi driver. In November 2005, Mr James was given a tariff of two years for unlawful wounding with intent. As it happens, all those three prisoners have since had a successful appeal to the European Court of Human Rights, and I mention them only as examples of the sorts of offences—run-of-the-mill offences, your Lordships may think—which these short-tariff prisoners committed.

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I turn to Section 128 of LASPO, which is referred to in Clause 9(3). When Parliament repealed Section 225, it was well aware of the backlog to which I have already referred, so it provided the Lord Chancellor with a power to alter the release test for those prisoners. It need no longer be the same as the release test for life sentence prisoners, nor need it depend in any way on an assessment of risk. It must be obvious, therefore, that Parliament gave the Lord Chancellor those powers in order to speed up the release of those prisoners and so reduce the backlog. It could have been given for no other purpose. But the Lord Chancellor—unfortunately, in my view—has declined to exercise that power.

The reason he gave in February 2013 was that it would not be right to interfere with the decisions of judges, who would have taken risk issues into account. But that reason has no validity at all in relation to the group of 773, since, for the reasons I have mentioned, their sentences were imposed when judges were obliged to assume dangerousness. In any event, when it enacted Section 128 of LASPO, Parliament must have intended the Lord Chancellor to interfere with the sentences imposed by judges; otherwise, what purpose did Section 128 serve?

The second reason given by the Lord Chancellor is that it would be irresponsible, indeed inconceivable, for him to release prisoners whom the Parole Board has assessed as continuing to pose risks. But again, that was surely the whole point of giving him the power to alter the release test. Is it to be said, therefore, that Parliament was being irresponsible in giving the Lord Chancellor that power?

Finally, there is the reason given by the Minister in his letter of 30 April. He said that Parliament did not instruct the Lord Chancellor to change the release test; it gave him discretion to do so. Of course that is true but it is well settled that, where a discretion is given by Parliament, it must be exercised so as to promote and not frustrate the purpose for which it was given; that is a principle that I know my noble and learned friend Lord Brown of Eaton-under-Heywood will develop further. The Minister gave as the reason for not changing the release test that it would not reduce the risk to the public. Of course it would not reduce the risk to the public but that was not the purpose for which the power was given. The purpose, I say again, was to speed up the release of those prisoners, not to reduce the risk.

I suggest that the Lord Chancellor must give better reasons than these for not exercising the power that he has been given. If the real reason is that the release of those prisoners would not go down well with the public, he should give that as the reason openly and then it can be tested, if necessary in court. It would have been far better if the Lord Chancellor had exercised the power he has been given but he has not. The purpose of this amendment is simply to give the Lord Chancellor a gentle push in the right direction.