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Third Report Contents

Instruments drawn to the special attention of the House

Draft Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Date laid: 14 October 2019

Parliamentary procedure: affirmative

This Order would allow an Alcohol Abstinence and Monitoring Requirement (AAMR), enforced by use of an electronic tag to monitor the offender’s sobriety, to be imposed as a sentencing option for alcohol-related offending anywhere in England and Wales. The Ministry of Justice (MoJ) has conducted two pilots in London and Yorkshire which it asserts have been very successful. Regrettably no data is yet available on the second of these pilots, and no information at all is available on the incidence of reoffending. Although the roll out of AAMR is to be incremental and is not scheduled to begin until Q3
(October–December) 2020, the House is being asked to approve the programme on the basis of very limited information. This is unacceptable. While we find the proposal interesting, it seems premature as the House currently has very little means of assessing whether the MoJ’s assertions are overly optimistic. The House may wish to press the Minister for more detail on all aspects of the department’s roll-out plans and anticipated long-term outcomes.

This Order is drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.

21.The Ministry of Justice (MoJ) has laid this affirmative instrument to bring into force section 76 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the 2012 Act”). This will enable the Alcohol Abstinence and Monitoring Requirement (AAMR), which includes an electronic tag to monitor the offender’s sobriety, to be brought into effect nationally. This will allow an AAMR to be imposed as a sentencing option for alcohol-related offending anywhere in England and Wales where a community order or suspended sentence order is imposed. The Order is accompanied by an Explanatory Memorandum (EM) and an Impact Assessment (IA).

The two pilots

22.Section 77 of the 2012 Act requires the AAMR programme to be piloted before any national roll-out. There have been two pilots. A pilot by the London Mayor’s Office for Policing and Crime (MOPAC) was commenced in 2014, extended to cover all London Local Justice Areas in 2016, and ended in June 2018. The second pilot in the Local Justice Areas of Humber, Lincoln and North Yorkshire (HLNY) was due to commence in April 2017 but was delayed due to a General Election being called. The pilot ended in April 2019.

23.AAMR aims to provide a new option for sentencers by filling a gap where offenders who are not alcohol dependent nevertheless commit alcohol-related offences. The MOPAC pilot showed AAMRs were most commonly given in relation to violence (45%), of which 57% were low-level common assault. MoJ states that it is reasonable to expect that a break in drinking alcohol, for up to 120 days, should remove a contributing factor or trigger to the behaviour of offenders who commit alcohol-related crimes, which could contribute to public sector savings in dealing with the outcomes of such crimes, lead to fewer victims and reduce the social, health and economic cost of alcohol-related harms.

24.The MoJ states that the two pilots have shown that there is appetite amongst sentencers for AAMR with a total of about 1,500 requirements having been imposed. Compliance with AAMR was high at 94% for the MOPAC pilot and a sober day rate of 98%.4 Similar levels of compliance are indicated from the HLNY pilot, although at this time the findings have not been published.

25.In additional material the MoJ added that:

“[T]he HLNY pilot adds to the MOPAC findings because it was significantly different in a number of ways; sentencers were asked not to order AAMR as a standalone requirement but alongside a rehabilitative requirement, and domestic abuse perpetrators were included. It is expected that this approach will have led to a greater ‘weight’ of sentence and for this to be reflected in the offenders who are subject to AAMR. In addition, HLNY had a different operational delivery model: probation staff carried out the monitoring and fitting. The intention of this model was to maximise the rehabilitative potential of AAMR for people whose alcohol misuse had led to criminal behaviour.”

26.We find it regrettable that the report providing the detail of this “significantly different” pilot is not available to the House and is not due to be published until February 2020.

27.The high level of compliance with the AAMR is not the full picture, as the AAMR was applied as part of a court order. MOJ states that:

“Of the court orders terminated in the quarter ending March 2019, 68% of community orders were terminated successfully (i.e. ran their full course or were terminated early for good progress); for the supervision periods of suspended sentence orders, 75% of all those terminated were terminated successfully over this period. These levels of compliance are not directly comparable, as the 94% compliance rate is only with AAMR rather than the full community or suspended sentence order it is a part of.”

The House may wish to ask the Minister to explain the effect of this distinction.

Effect on Reoffending

28.MoJ states that stakeholders, including the offenders, indicated that the AAMR has the potential to have a positive impact on the lives of the offenders, particularly around reducing their alcohol consumption and reoffending. The majority of survey respondents indicated the AAMR would help in other areas of the offenders’ lives such as work, family and health.

29.No data, however, is yet available on the incidence of reoffending following the imposition of an AAMR. The MoJ states that the MOPAC reoffending analysis was due in December 2018 but has slipped, and data for the HLNY pilot is due in February 2020. In response to questions, MoJ said:

“Reoffending findings will be available well in advance of commencing roll out and will inform the delivery of AAMR. However, it is our view that the findings we already have from the MOPAC and HLNY evaluations indicate that AAMR is an effective sentence option. It is the department’s intention to assess impacts much more substantially, including to inform the better targeting of resources to address alcohol harms, when we roll out AAMR.”

30.Assessing whether the measure has been effective in the longer term is a key part of evaluating the likely success of the initiative. We therefore find it inappropriate for the House to be asked to decide on further roll-out before information on the reoffending rates is available.

Projected Numbers

31.The IA states that the:

“… best estimate is that in steady state about 2,300 people will be sentenced to these orders each year, with a caseload of 400 at any given point. The main costs associated with this relate to the costs of electronic monitoring, including the hardware and the monitoring itself. There will also be field services costs for fitting and removing equipment. We estimate the hardware, monitoring and field services to cost £38m over 10 years. Costs to set up the operational delivery and some impact on probation for monitoring are included in this. We expect there will be costs associated with breach of these order for courts, legal aid, and an impact on prison places where breach results in custody. These additional costs are expected to total £6m over 10 years.”

32.While these costs will be offset by societal benefits from reduced violence, policing and court costs, without data about the incidence of reoffending it is difficult to assess whether the system offers real value for money.

33.Given the well-known pressure on prisons, we asked the department whether this new option might be used to much greater extent than anticipated and courts might find themselves in the position where the resources are not available to fulfil an AAMR. MoJ replied: “Subject to successful passage of the legislation, we intend to take an incremental and agile approach to rolling out AAMR, which will give us sufficient time to assess volumes and costs and adjust accordingly. We do not expect to reach steady state until 2023–24.”

Conclusion

34.Although the IA states that the roll out of AAMR is to be incremental and is scheduled to begin in Q3 (October–December) 2020, the House is being asked to approve the programme on the basis of very limited information. This is unacceptable. While we find the proposal interesting, it seems premature as the House currently has very little means of assessing whether the MoJ’s assertions are over-optimistic. The House may wish to press the Minister for more detail on all aspects of the department’s roll out plans and anticipated long-term outcomes.

Draft Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Date laid: 14 October 2019

Parliamentary procedure: affirmative

This Order moves the automatic release point for certain violent or sexual offenders from the half-way point of their sentence (under the provisions of the Criminal Justice Act 2003) to the two-thirds point. The change will only apply to offenders convicted after 1 April 2020 who are subject to sentences of more than seven years. The Explanatory Memorandum states that this will provide greater public confidence in sentencing and the administration of justice. The Committee, however, raises some practical concerns about how this increased prison population is to be accommodated. In particular, the House may wish to seek reassurance from the Minister that adequate resources will be available in good time to meet this expanded remit, both in relation to prison accommodation and prison service staff.

This Order is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.

35.This Order has been laid by the Ministry of Justice (MoJ) and is accompanied by an Explanatory Memorandum (EM) and an Impact Assessment (IA). It proposes to change the amount of time actually served by those convicted of violent or sexual offences from half to two-thirds of their sentence. The new provision will apply to offenders convicted after 1 April 2020 who are subject to a sentence of more than seven years (including those sentenced to consecutive terms of imprisonment that add up to more than seven years).

Background

36.Automatic release from a fixed-term custodial sentence is a long-standing provision, first introduced in the Criminal Justice Act 1991. Currently, offenders sentenced to standard determinate sentences must be automatically released halfway through their sentence, under the provisions of the Criminal Justice Act 2003 (“the 2003 Act”), which also requires those offenders to serve the whole of the remainder of their sentence on licence. This Order would move the automatic release point for specified offenders from the halfway to the two-thirds point of their sentence, which will, in due course, reduce some of the burden on the probation service but also require more prison accommodation.

37.In proposing the change the EM states that it will not affect the more stringent regimes applied to those offenders deemed dangerous who are subject to an Extended Determinate Sentence (EDS) or to those subject to the new Sentence for Offenders of Particular Concern (SOPC), which applies automatically to offenders convicted of a specific sexual or terrorist offence listed in Schedule 18A of the 2003 Act.

38.The EM states that requiring offenders sentenced to seven years or more to serve two-thirds of their sentence aligns their release conditions with those of offenders who receive an EDS. The length of their sentence reflects the seriousness of the offence, and they should therefore serve a greater proportion of their sentence in custody.

39.Paragraph 10 of the EM states that the current practice of releasing those charged with similarly violent offences at different points may be affecting public confidence in sentencing. “A recent report by the Sentencing Council found that that nearly three quarters of the public (70%) surveyed thought sentences are too lenient, and almost half of victims did not have confidence in the fairness of the criminal justice system (49%).”5 The MoJ states that the longer period of detention will make victims feel safer and give them more certainty since the offender’s date of release is fixed in advance and not discretionary.

Effect on the prisoner

40.At paragraph 7.15 of the EM, the MoJ cites research indicating that prisoners also benefit from knowing that they will be released on a determined date. Over time, they adjusted better, coming to terms with what they had done and learning new skills.6

41.The IA, however, raises some broader questions. As well as citing the same research quoted in the EM, paragraph 36 of the IA states that research also shows that serving a life sentence is linked to an increased risk of self-harm while in prison.7 Paragraph 40 mentions that it is unknown how the shorter period on licence after release will impact on these prisoners’ reintegration into society. The House may wish to ask the Minister for further information on the effect of the change on prisoners.

42.Paragraph 37 of the IA also comments that during the transition period there may be increased tensions due to prisoners who have been convicted of similar crimes serving different length sentences. However, MoJ says that that is not a new problem and is handled by the Prison Service as part of the daily operations of managing the prison population.

Numbers

43.Page 6 of the IA estimates that, in 2018, there were around 1,450 sentences for crimes that would be within scope of the new provisions. Table 4 in the IA extrapolates this to illustrate a progressive growth in numbers from fewer than 50 in March 2024 to around 2,000 additional prisoners needing to be accommodated by March 2030. The annual running cost of this additional caseload is estimated at £70 million.

Capacity

44.Paragraph 33 of the IA estimates that providing 2,000 additional prison places will require the construction or refurbishment of prisons at a median cost of £440 million. In the light of recent press reports of overcrowding in existing prisons and prisons being closed down as not fit for purpose,8 we asked how providing for these additional prison places fits into the Government’s wider plans for the provision of adequate prison capacity. MoJ replied:

“As the IA acknowledges, the change to sentencing will impact on the prison population, though the effects will not be felt immediately. The department has also been working with partners across the Criminal Justice System (CJS) to understand the impact that the recruitment of 20,000 additional police officers could have on the prison population. As a result, MoJ is investing up to £2.5bn to provide 10,000 additional prison places and an additional £156m next year to undertake maintenance across the prison estate, to manage the combined effects of the anticipated increases in demand … We remain committed to reducing crowding across the prison estate, with all new accommodation, including the new prisons at HMP Wellingborough and HMP Glen Parva, planned on this basis.”

45.In its assessment of risks (Table 3), the IA notes that:

“There are constraints on how quickly new prison places can be provided due to identifying suitable sites, securing planning permission, having sufficient construction market capacity, as well as operational challenges of ramping up multiple prisons. If other policies were to increase prison population or the impacts of [this Order] are greater than anticipated, there is a risk that the increased capacity may not be able to meet the demand.”

MoJ has confirmed that there are no plans to ‘reserve’ places or whole prisons for the group of offenders who will be affected by this Order.

46.In relation to the Probation Service, the IA calculation assumes that any increase in the prison population due to prisoners serving longer in custody would be mirrored in a decrease in the probation caseload on licence. The MoJ explained that “the estimated £8m in benefits from reduction in demand for probation services is for a single year period (2030), when the caseload is expected to be 2,000 fewer. The IA has assumed this will build up over time, resulting in a 10–year saving of £29m rather than £8m per year over 10 years.”

47.However, on page 8 the IA mentions that the future design of the probation system is currently under discussion and the estimated costs and savings could therefore vary. The MoJ has published a draft Blueprint document,9 the development of which is ongoing, and which is subject to HM Treasury approvals. MoJ states that it intends to set out more details of the future operating model for probation before the end of the year.

Conclusion

48.While acknowledging that the intended benefits of MoJ’s policy relate to the protection of victims and the wider public rather than to offenders, the effect of the Order on their welfare in prison and their likelihood of reoffending after release should be taken into account. The welfare of prison officers and their ability to cope with these changes also needs to be addressed.

49.The Committee was concerned that the MoJ’s plans to provide for the increased prison places required as a result of this Order were subject to a number of variables which may affect the outcome: significant changes to the probation system are planned; the announced increase of 20,000 police officers may increase the overall number of prisoners who need to be accommodated; and plans to increase prison stock may be subject to slippage.

50.Paragraph 38 of the IA sums up the key concerns: if the prison population increases at a faster rate than expected or the planned building programme does not keep pace with the increase, there may be overcrowding:

“Although crowding is not in and of itself a cause of prison violence it could impact upon the ratio of staff to offenders and the ability to provide a full regime of activities and time out of cell, a factor associated with increased levels of violence. If this were to result it could also have an associated impact on prisoner’s rehabilitation”.

51.The Committee acknowledges that this Order represents one piece of a large and complicated jigsaw, but the House may wish to ask the Minister for more information about how the pieces fit together. In particular the House may wish to seek reassurance from the Minister that adequate resources will be available in good time to meet this expanded remit, both in relation to prison accommodation and prison service staff.

Draft Representation of the People (Annual Canvass) (Amendment) Regulations 2019

Date laid: 14 October 2019

Parliamentary procedure: affirmative

The annual canvass is an audit of the electoral register. The new process set out in these Regulations will incorporate a ‘data match’ at the outset of the process which will enable the Electoral Registration Officer (ERO) for the area to identify which properties are likely to have an unchanged household composition, and tailor his or her approach accordingly. Whilst the current canvass can only be completed by sending paper forms to each property, under the reformed canvass the ERO will be able to use a range of different types of communication methods. This will allow EROs to use the methods most appropriate for their local residents and is also anticipated to save £20 million per year in processing costs. Regrettably the Explanatory Memorandum (EM) provided by the Cabinet Office was, in our view, impenetrable. This report, therefore, sets out the key points of the proposed Regulations in a simplified form for the benefit of the House. We have asked the Cabinet Office to publish a revised EM.

These Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.

52.These affirmative Regulations have been laid by the Cabinet Office and are accompanied by an Explanatory Memorandum (EM), an Impact Assessment (IA) and a statutory report from the Electoral Commission. Regrettably, the EM took a very legalistic approach that failed to provide a coherent overview of the intended policy changes. The IA and Electoral Commission report were however much clearer. The following report, based on additional material from Cabinet Office, sets out the key points of the proposed Regulations, along with some additional context about the policy. The Cabinet Office will also be asked to revise their EM so that it is clearer to the ordinary reader.

53.These Regulations apply to Great Britain in respect of the UK Parliamentary register and the local government electoral register in England, but it is anticipated that Wales and Scotland will wish to make similar reforms to their local government registers.

Policy Intention

54.The annual canvass is an audit of the electoral register with the purpose of identifying:

55.The policy intention of these Regulations is:

Canvass Reform

56.The new process set out in these Regulations will incorporate a ‘data match’ at the outset of the process, which will enable the ERO for the area to identify which properties are likely to have an unchanged household composition, and tailor his or her approach accordingly. Where the data the ERO holds on registered electors matches national government data and, where relevant, locally-held data sources such as Council Tax data or Housing Benefit records, the ERO can have some confidence that the details they hold on their register remain accurate and a simplified process can be used.

57.The reformed canvass proposes three different ways of canvassing properties:

(1)The “matched property” process (new regulation 32ZBE) for properties where the data has matched, indicating that the household composition is unlikely to have changed since the previous canvass was conducted. Under this process:

(2)The “unmatched property” process (new regulation 32ZBD) for properties where results of the data match indicate that the household composition is likely to have changed since the previous canvass was conducted:

(3)The “defined property” process (32ZBF):

Savings

58.To safeguard the completeness and accuracy of the register, every property will still receive a written communication. The main difference under the reformed canvass is that, where the ERO is satisfied there are no changes to be made, the property resident does not need to respond to the paper canvass communication and will not be subject to a follow up process. These changes are expected to save £20 million per year in processing costs and postage.

59.We asked whether the savings would be to central or local government. The Cabinet Office replied that it funds the additional costs of Individual Electoral Registration (IER) under the “new burdens doctrine”.10 It is anticipated that the savings made as a result of canvass reform will offset these costs and eventually cover them completely. The additional flexibility introduced through canvass reform will also give EROs the opportunity to establish new efficiencies in their work.

60.We also asked for how long is it intended to run the Household canvas and the Individual Registration scheme in parallel since, once embedded, they may largely duplicate information. The Cabinet Office responded:

“Individual electoral registration and the annual canvass work in conjunction to ensure each ERO can compile a complete and accurate electoral register. The introduction of IER in 2014 has been a success, ensuring that EROs check the identity of applicants before adding them to the electoral register. Alongside this, the introduction of online registration at the same time, has increased the accessibility and ease of people registering to vote. The annual canvass process sits alongside this as an audit of the details held on the electoral registers. Its purpose is to gather information on people who are not currently registered but should be, and thus be able to invite them to register individually, but also to identify electors who should no longer be registered and start the process to remove them.

The Cabinet Office worked with a series of EROs in 2016 and 2017 to conduct pilots on alternative approaches to the annual canvass. The results of these pilots did not suggest that abolishing the canvass is appropriate currently.”

Evaluation

61.The Electoral Commission monitors the annual canvas, amongst other matters, and will submit reports to the Secretary of State from time to time. The Cabinet Office will undertake a benefits realisation exercise in due course including measuring how this legislation has performed against its objectives and the lessons learned.

62.As part of this reform, a data matching test is to be held in early 2020 as a “dry run” to give EROs an indication of the sort of information that they will receive in their area for example the percentage of properties that are matched or unmatched. The Cabinet Office states that:

“We are in the process of completing development and testing of the end to end technical components to facilitate the data test. All components are currently on track to be ready to go live by the end of November 2019. We will be conducting the ‘dry run’ in two tranches, with a smaller group of EROs first, before all EROs go through the data test from January 2020. We have scheduled time between the two dry runs to make any further refinements to the data matching process. Following the main dry run data matching, we will complete an evaluation, and share it with our key stakeholders”.

Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime (CP 178)

Date laid: 7 October 2019

Parliamentary procedure: negative

This Agreement will provide a mechanism that will allow those investigating serious crime in the UK or USA to have their requests for evidence from electronic data held in the other country to be processed much more quickly. This report sets out a number of restrictions that apply, and Appendix 1 gives some illustrative examples of different scenarios in which such data can or cannot be requested. Two weeks after laying the original Agreement the Foreign and Commonwealth Office on behalf of the Home Office also deposited four unnumbered Command Papers. These four papers had been signed on the same day as the original Agreement. We regard this staggered laying of associated papers as poor practice and likely to impede the scrutiny process.

Two of the papers address the UK and USA’s mutual understanding of how the Agreement will operate in relation to offences attracting the death penalty in the US or the detention of individuals at Guantanamo Bay. We asked the Home Office whether the Agreement could be used in circumstances where a UK citizen’s data was sought in relation to a crime that could result in the death penalty or to transfer to the Guantanamo Bay detention facility (GTMO). The Minister repeated the UK’s long-standing opposition to the death penalty and stated that the risk of the Agreement being used to target data in relation to GMTO was “very limited” but “theoretically possible”. While these assurances are helpful, given the gravity of the matter, we take the view that even a theoretical possibility is alarming. For this reason, we draw this Agreement to the special attention of the House on the ground that it may imperfectly achieve its policy objective.

This Agreement is drawn to the special attention of the House on the ground that it may imperfectly achieve its policy objective.

63.Terrorists and criminals are increasingly using email and social media applications to facilitate their activities, but the companies that provide these services are primarily based in the USA. Under the current legislative regime in each country, obtaining data in connection with an investigation can take a year or more. This Agreement, laid by the Foreign and Commonwealth Office on behalf of the Home Office, provides a mechanism that will allow data requests to be processed much more quickly. It initially applies for five years but can be extended by mutual agreement.

64.Normal procedure will apply, for example investigators will require a warrant, and requests will still be subject to each country’s data protection legislation and, in the UK, to the provisions of the Investigatory Powers Act 2016. The data provided is to “facilitate law enforcement in the prevention, detection investigation, and prosecution of serious crime”.11 There are also some specific restrictions in the Agreement, including:

65.Two weeks after laying the original Agreement, four unnumbered Command Papers were deposited which address the UK and USA’s mutual understanding of how certain provisions will operate.12 These four papers had been signed on the same day as the original Agreement. We regard this staggered laying of associated papers as poor practice and likely to impede the scrutiny process.

66.Three of these four documents simply expand on matters touched on in the Agreement and its Explanatory Document—that is: the UK’s reservations about providing data that may be used in prosecuting a crime subject to the death sentence in the USA (Article 8 (4)); limitations on preserving subscriber information (Article 10); and provisions to comply with certain requirements in American law to do with freedom of speech (Article 8(4)). However, the fourth document relates to the provision of information that may relate to a current or potential detainee at Guantanamo Bay. Where such information is requested from the UK, the letter commits the USA to giving the UK specific notification of its intended use. The House may wish to ask the Minister whether the Home Office has now provided all the relevant documents.

67.The Home Office classifies these four documents as “side notes”, which are not annexed to the Treaty and therefore not subject to the same scrutiny process as the Treaty. It also states that although these “side notes” are non-binding, they are linked to the Agreement and can be used as a context for the purpose of interpreting the Treaty (in line with Article 31 of the Vienna Convention on the Law of Treaties). The House may wish to ask the Minister to explain in more detail the exact status of these non-binding documents, particularly the document relating to Guantanamo Bay, which does not seem as firmly anchored in the Agreement’s Articles as the other three.

Extradition and the death penalty

68.In additional information, the Home Office informed us that the Designated Authorities, who will oversee all requests made under this Agreement, are likely to be the Home Office Investigatory Powers Unit in the UK and in the USA the Office of International Affairs, which is part of the US Department of Justice.

69.We asked the Home Office whether this Agreement could be used to extradite someone to the USA for prosecution there. The Home Office replied:

“Such extradition requests would be considered by the UK’s courts and the Secretary of State in the normal way.

Extradition from the UK is barred where it is incompatible with a person’s human rights or where the person concerned could be, has been or will be sentenced to death, unless the Secretary of State receives credible assurances that the death penalty will not be imposed or, if imposed, will not be carried out.”

70.We find the Home Office’s answer deeply troubling, and the House may wish to press the Minister for answers to the following questions:

71.The letter of Understanding in relation to the death penalty states that the UK will be informed if the US intends to use information obtained during the investigatory stage to prosecute someone for a crime that attracts the death penalty and may object on the ground that:

“… its essential interests under the Agreement may be implicated by the introduction of data received pursuant to the Legal Process recognised by the Agreement as evidence in the prosecution’s case in the United States for an offence for which the death penalty is sought.”

The House may wish to ask the Minister whether the UK could argue that its essential interests may be implicated if the information obtained by the USA is to be used to prosecute a person from a third-party state.

72.The Committee also noted that the Explanatory Memorandum to the Agreement states that if such a notification were received the UK will undertake an assessment under the OSJA process13 to inform the UK minister’s decision.” The House may wish to ask the Minister whether this should be taken to mean that is possible that such permission could be given.

73.In the parallel situation, where the US informs the UK of its intention to use such information “where the target of operations has been nominated for, or designated for, detention at Guantanamo” the additional material from the Home Office (see Appendix 1) states that the “UK would have the ability to make appropriate diplomatic representations to challenge any such use”.

Guantanamo Bay detention facility (GTMO)

74.We asked the Home Office whether the agreement could be used in circumstances where a UK citizen’s data was sought in relation to transfer to GTMO. We were told:

“… the risk of data being obtained under the Agreement being used in this way as very limited. Whilst it is theoretically possible, it is extremely unlikely that data obtained from a UK company under the Agreement would ever be used in this way.”

Conclusion

75.In response to our questions, the Minister repeated the UK’s long-standing opposition to the death penalty and stated that the risk of the Agreement being used to target data in relation to GMTO was “very limited” but “theoretically possible”. While these assurances are helpful, given the gravity of the matter, we take the view that even a theoretical possibility is alarming. For this reason, we draw this Agreement to the special attention of the House on the ground that it may imperfectly achieve its policy objective.

4 MOPAC have published four evaluations of their pilot at different stages. The latest report is Alcohol Abstinence Monitoring Requirement A review of process and performance from Year 2 (July 2018): https://www.london.gov.uk/sites/default/files/aamr_final_process_performance_y2_report_final.pdf [accessed 30 October 2019].

5 Sentencing Council, Public Knowledge of and Confidence in Criminal Justice System and Sentencing: A Report for the Sentencing Council (August 2019): https://www.sentencingcouncil.org.uk/wp-content/uploads/Public-Knowledge-of-andConfidence-in-the-Criminal-Justice-System-and-Sentencing.pdf [accessed 25 October 2019].

6 Ben Crewe, Susie Hulley & Serena Wright, ‘Swimming with the Tide: Adapting to Long-Term Imprisonment’, Justice Quarterly, vol. 34 no. 3 (2017), 517-541: https://www.compen.crim.cam.ac.uk/PDFs/SwimmingwiththeTideAdaptingtoLongTermImprisonment.pdf/view.

7 Laura Pope, HM Prison and Probation Service, Self-harm by adult men in prison: A rapid evidence assessment (REA) (2018): https://www.gov.uk/government/publications/self-harm-by-adult-men-in-prison-a-rapid-evidence-assessment [accessed 25 October 2019].

8 For example, ‘The Grange ‘open’ prison to shut after being called ‘squalid’’, BBC (16 October 2019): https://www.bbc.co.uk/news/uk-england-hereford-worcester-50070645 [accessed 25 October 2019].

9 HM Prison and Probation Service, The Proposed Future Model for Probation: a Draft Operating Blueprint (19 June 2019): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/822222/The_Proposed_Future_Model_for_Probation_-_A_Draft_Operating_Blueprint_-_HMPPS_-_19-06-2019_v.2.pdf [accessed 28 October 2019].

10 Whereby the lead government department must fully fund the costs of any new burdens placed on local authorities as a result of policy change.

11 Statement by Baroness Williams of Trafford HL Deb, 21 October 2019, HLWS25

12 These four Command Papers, originally laid on 22 October 2019, were withdrawn and relaid on 29 October 2019 due to an administrative error. They are available with the Agreement on the Treaty website: https://www.gov.uk/government/publications/ukusa-agreement-on-access-to-electronic-data-for-the-purpose-of-countering-serious-crime-cs-usa-no62019

13 Foreign and Commonwealth Office, The Overseas Security and Justice Assistance Guidance (26 January 2017) https://www.gov.uk/government/publications/overseas-security-and-justice-assistance-osjaguidance [accessed 30 October 2019]



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