(1 day, 6 hours ago)
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Lord Beith
Member's explanatory statement
This amendment is intended to clarify that the purposes of sentencing specifically include the protection of victims of crime.
Lord Beith (LD)
On behalf of my noble friend Lord Marks of Henley-on-Thames, I beg to move Amendment 45. The purpose of this amendment, and indeed of Amendment 45A which is grouped with it, is to get the focus right. We believe the focus on the victims of crime should be clear on the face of the Bill and regularly understood.
Much of this Bill is about enabling policy change by establishing public confidence in things that we know from evidence are likely to reduce crime and keep people safer. The problem is that that is not easy. Certainly, the media treatment of crime issues tends to undermine the ability of the public in general to have confidence that the system is working for them, that it is working to keep them safe and that it is also working to assist victims and to ensure that they get what they deserve, which is proper police pursuit of criminals, an effective courts process and appropriate methods of dealing with offenders that make it less likely that other people will suffer what they have suffered. That is a frequent comment from victims, who will say “What I care about is that something like this should not have to happen to anybody else in the way that it has happened to me”. I do not need to make a long speech on the subject; the issues that we are concerned about are well understood by Ministers. We want to make sure that people can see that this is what the Bill is about.
I very much welcome Amendment 45A—on the supplementary to the Marshalled List—tabled by the right reverend Prelate the Bishop of Gloucester and commanding the support of the noble Lord, Lord Moylan, and the noble and learned Lord, Lord Burnett. Amendment 45A sets out the purposes of imprisonment, which is what I was talking about a moment ago, so that the public can understand that we want to deter and prevent reoffending. Amendment 45A refers to the incapacitation of prisoners in order to restrict their ability to commit further crimes, the deterrence of prisoners, the just punishment of prisoners and the rehabilitation of prisoners. It is not our amendment, but it is closely related to what we are talking about. It sets out very clearly some of the purposes of imprisonment and I will be very interested to hear what the Minister’s reaction to it is. I beg to move.
The Lord Bishop of Leeds
My Lords, I shall speak to Amendment 45A in the place of the right reverend Prelate the Bishop of Gloucester, who, regrettably, is not able to be here today. It seems that in wider society there is a greater push for harsher punishment and longer sentences, and there is a tension with what the purpose of such punishment is. This amendment is designed to provide some elucidation on that. It would define in law the purposes of imprisonment and require the courts and the Secretary of State to have regard to the purposes of imprisonment.
His Majesty’s Prison and Probation Service’s strategic objective is to
“carry out sentences given by the courts, in custody and the community, and rehabilitate people in our care through education and employment”.
But there is no statutory or other provision that directly addresses the fundamental purposes of imprisonment. While the Bill sets out the statutory purposes of sentencing, these do not provide guidance to judges on whether imprisonment is appropriate, nor on what should occur once an offender is incarcerated. The need to confront this, we suggest, is quite urgent. There is tension, obviously, between punishment, rehabilitation and restoration.
In the absence of a clear understanding of the purpose of imprisonment, it seems important both for prisoners and their wider families and community, as well as victims, that the expectations of what the particular punishment sets out to do are clear, rather than just handing out a prison sentence and hoping that something good will happen. I should also add that, in my own experience of prisons and talking to people engaged in prison rehabilitation, the resources to enable such rehabilitation to happen—such as education and so on—are reducing, and this cannot be good.
At present, the public express little confidence in the courts and prisons, in part as a result of the lack of clarity around the purpose and use of imprisonment. A clear parliamentary statement on this issue would serve prisoners, who would better understand why they have been imprisoned. This is about clarity. A number of jurisdictions, such as New Zealand, have legislated guidance for courts and the community more broadly regarding this issue. On behalf of those who have signed up to this amendment, I say that this is an amendment that could be taken seriously and would help the judicial system.
Lord Keen of Elie (Con)
My Lords, we on these Benches fully support the principle that victims’ rights, safety and experiences must be considered. Included already in the statutory purposes of sentencing is the protection of the public. In practice, courts make an effort to take victims’ interests into account. The explicit addition to Clause 4 raises an interesting principle, and the amendment serves, perhaps, as a useful reminder of the centrality of victims in our justice system. We look forward to hearing the Government’s response to Amendment 45.
Amendment 45A, in the name of the right reverend Prelate the Bishop of Gloucester, would place in statute the purposes of imprisonment and require both the courts and the Secretary of State to have regard to them. The first of these principles is
“the incapacitation of prisoners in order to restrict their ability to re-offend in the community”.
I simply observe that the purposes of Clauses 1 and 2 of the Bill are to the opposite effect. They raise presumptions in favour of the release of prisoners into the community, rather than their incapacitation to restrict their ability to reoffend. I look forward to hearing the Minister’s response to that.
I note that Amendment 45A would reinforce principles already central to sentencing and prison policy, which can only be good for public confidence. If it can lead to improvements in rehabilitation and public protection, then all to the good. Again, I look forward to hearing the Minister’s reflections on the four aims proposed in Amendment 45A.
Lord in Waiting/Government Whip (Lord Lemos) (Lab)
My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, to the noble Lord, Lord Beith, for bringing forward Amendment 45 in his place, and for the spirit in which it has been proposed. The Government share the noble Lords’ goal and dedication to ensure that victims are properly protected within our justice system. That is why Clause 4 makes it clear that the protection of the public explicitly includes victims of crime. This is a significant and, I must stress, intentional step forward. Although I wholeheartedly share the noble Lords’ intentions and commitments, I do not believe that the additional wording proposed in the amendment would add substantive value to what is already being achieved by the changes we are making in the Bill.
Clause 4 will make it clear that courts should consider the protection of victims as part of sentencing. That is very important. This amendment would simply restate what is already made explicit by Clause 4. Of course, the Government’s commitment to protecting victims is not limited to the changes we are making in Clause 4. The noble and learned Lord, Lord Keen, asked me to comment on the centrality of victims to the justice system. I am so happy to do that that I rewrote this speaking note this morning, with the help of the officials.
The Bill contains other important measures that will protect victims. As noble Lords know, we are introducing new restriction zones, which will limit the movements of offenders instead of the movements of victims. We are also creating a new domestic abuse flag at sentencing so that domestic abusers are more consistently identified. This will help prisons and probation services manage offenders effectively and ensure that victims are better protected.
We are taking many steps outside the Bill to protect victims. We are continuing the provision of free sentencing remarks to victims of rape and sexual offences, and we are expanding the use of specialist domestic abuse courts—a very important cause, with which I have been associated for many years—with trained staff to support victims and more co-ordinated management of perpetrators.
I turn to the amendment proposed by the right reverend Prelate the Bishop of Leeds, in the absence of the right reverend Prelate the Bishop of Gloucester, who has made an important contribution to this debate by raising whether the purpose of imprisonment should be defined in legislation. I spent many years chairing the agency board of HMPPS, and one of my jobs was to set the strategy. We spent a long time debating precisely this point and how we should frame it, so I understand the issues the right reverend Prelates seek to address.
Although I agree wholeheartedly that our debates should be guided by principles and evidence, and not by headlines—the noble Lord, Lord Beith, said that one of the most important duties of new legislation is to win public confidence; I entirely share that sentiment— I am afraid that I respectfully disagree that a definition in statute is needed. The purposes of sentencing, including imprisonment, are already set out in statute and reflected in Sentencing Council guidelines. These principles should guide our courts every day and provide the flexibility needed to respond to changing circumstances and emerging threats. With those comments in mind, I ask the noble Lord, Lord Beith, to withdraw his amendment.
Lord Beith (LD)
My Lords, the Minister has made a good case for his reliance on Clause 4 in its reference to victims. The wider issues raised in Amendment 45A ought still to attract the Government’s interest as we proceed with the Bill, but on the basis of what has been said in this short debate, I beg leave to withdraw the amendment.
Baroness Hamwee
“(3A) Sentencing guidelines must provide that domestic abuse is an aggravating factor.”Member’s explanatory statement
This amendment would require sentencing guidelines to treat domestic abuse as an aggravating factor in sentencing.
Baroness Hamwee (LD)
My Lords, my noble friend Lord Marks of Henley-on-Thames has added his name to this amendment, which would ensure that sentencing guidelines
“provide that domestic abuse is an aggravating factor”.
Clause 6 puts into statute a provision that if the court is passing a sentence and
“is of the view that the offence involved domestic abuse carried out by the offender”,
then the court must state that. This clause is a very important acknowledgement of offences involving domestic abuse. My honourable friend the Member for Eastbourne played no small part in getting this on to the statute book.
Enabling the understanding of offences involving domestic abuse is important, generally and for the victim. I assume that the court being required to state that the offence involved domestic abuse will better enable the MoJ to keep data about this. I do not know whether the Minister will be able to confirm that or, at any rate, note the point that keeping data is important. We are going at little more than a snail’s pace in recognising domestic abuse; it is quite laborious achieving each step. I doubt I need to elaborate on this to noble Lords, but it is important for the victim to have not just a general recognition, but something which is official, stated by the court, of what they have gone through and what underlies it. That is of great significance to the individual.
However, simply providing for findings of domestic abuse provoked the question: and then what? Amendment 46 is intended to provide the answer by putting the matter into sentencing guidelines as an aggravating factor. I believe that the commission of an offence in the domestic context is already an aggravating factor under the sentencing guidelines, with which I struggled over the weekend. However, domestic abuse is more than context. I think the MoJ must accept that, otherwise new Section 56A would refer to domestic context, not domestic abuse. It is important; as people say, you cannot deal with what you cannot name. I beg to move.
Lord Keen of Elie (Con)
My Lords, I speak briefly to Amendment 46 in the name of the noble Baroness, Lady Hamwee. As I read it, the amendment seeks to treat domestic abuse as an aggravating factor when determining all sentencing. Of course domestic abuse is a serious pervasive crime and it clearly has profound long-term impacts on its victims. This amendment appears to promote some degree of clarity and consistency, and, indeed, fairness in sentencing. It would ensure that the courts can take full account of both the nature and the impact of domestic abuse when deciding on an appropriate sentence. I look forward to hearing the Minister’s views on it.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, for drawing attention to this important topic. They, along with their colleagues in the other place, have campaigned tirelessly on this issue.
I want to reassure the noble Baroness that we believe that this will improve the quality of data. The amendment we are debating today would require sentencing guidelines to provide that domestic abuse is an aggravating factor in sentencing. I fully appreciate the intent behind the amendment, and the Government wholeheartedly agree that judges should consider domestic abuse when sentencing, but I hope I can reassure the noble Baroness that this is already the position and explain why the Government do not consider a further amendment necessary.
Domestic abuse is already treated as an aggravating factor through the Sentencing Council’s guidelines. Courts are required by law to follow this, unless it would not be in the interests of justice to do so. The Sentencing Council has looked carefully at this issue and has issued an overarching guideline on domestic abuse. That guideline makes it clear that the presence of domestic abuse can make an offence more serious. In addition, a wide range of offence-specific guidelines include
“an offence committed within a domestic abuse context”
as a specific aggregating factor.
Baroness Hamwee (LD)
I am grateful to the Minister for that. As I have said earlier today, I have struggled with the guidelines, which are long and dense. Without seeing the individual offences which domestic abuse aggravates—if I have the words in the right order there—it is hard to respond, although I retain a wish to see domestic abuse being an aggravating factor overall rather than just in some specified circumstances. However, I am happy to pursue this outside the Chamber so that I can understand precisely how this is currently dealt with. I am grateful to the Minister, and I beg leave to withdraw the amendment.
Lord Keen of Elie
“Parents of young offenders(1) The Secretary of State must undertake an assessment of the effectiveness and use by the courts of the following powers in the Sentencing Code—(a) sections 365 to 375 (parenting orders), and(b) sections 380 to 383 (costs, fines and other financial orders where offender aged under 18).(2) The assessment undertaken under subsection (1) must make recommendations on—(a) ways to increase use of the Sentencing Code powers to make parenting and financial orders, and(b) other potential sentencing changes to promote greater parental responsibility in respect of young offenders.(3) The Secretary of State must, within a year of the passing of this Act, lay a copy of the assessment made under this section before Parliament.”Member’s explanatory statement
This new clause would require the Secretary of State to assess the use of the courts’ existing powers to make parenting orders and financial orders to parents of young offenders.
Lord Keen of Elie (Con)
My Lords, this amendment would require the Secretary of State to undertake a full assessment of how the courts are using their existing powers to make parenting and financial orders for young offenders. These powers are already available under the Sentencing Code but in practice are used far less than Parliament had originally intended. Indeed, the Ministry of Justice has confirmed that more than 1,000 such orders were made in 2010, yet only 27 have been made in recent years. That is a striking decline, which raises serious concerns about whether important statutory powers designed to support families and address the causes of youth offending are being neglected or overlooked.
The purpose of these orders is not to punish parents but to support them, to help restore discipline and stability in the home and, ultimately, to prevent the next crime before it happens. Through assessing their effectiveness and making recommendations to increase their use, this amendment seeks to strengthen parental responsibility and engagement in the rehabilitation of young offenders. Children are of course among the most vulnerable in our society and it is our responsibility as lawmakers, indeed as parents, and ultimately as adults, to ensure that when young people offend, there is structure, support and the necessary resources in place to prevent them reoffending. I suggest that this amendment is a measured and constructive step towards achieving that aim.
I note that the noble Lord, Lord Jackson, is not in his place, but I will just mention his Amendment 87. The amendment addresses a very different but equally important aspect of youth justice: the question of transparency in cases involving the most serious offending by those under 18 years of age. The amendment would require reporting restrictions to be lifted at the point of sentencing where a young offender received a custodial sentence of four years or more. To receive a custodial sentence of over four years is telling of the crimes committed. I appreciate that anonymity has been a protective safeguard for most children within the justice system, and of course rightly so, but where an offence of such gravity that it warrants a substantial custodial sentence has been committed, there is a strong public interest in transparency and accountability. So I would welcome the Minister’s response not only to my own amendment but to that tabled by the noble Lord.
Lord Lemos (Lab)
My Lords, I thank the noble and learned Lord and the noble Lord for raising these important issues. Obviously, the Bill focuses on the adult system, but I am pleased that we have this opportunity to debate these amendments about the youth justice system, about which all of us are concerned. However, our position is that neither of these amendments are necessary.
Amendment 47 would require the Secretary of State to assess the effectiveness of certain orders available when dealing with a child under the age of 18. This includes parenting orders, and costs, fines and other financial orders. I am very happy to acknowledge the importance of these orders, as stressed by the noble and learned Lord, Lord Keen. They are very much part of the toolkit for dealing with youth offending and youth justice and have an important role in supporting greater responsibility for a child’s offending—excuse my voice; the NHS’s work in restoring my mellifluous tones is not quite complete yet. Whether they are used in a particular case is best determined by the court with access to professional advice from the youth offending team. When we were discussing this prior to this Committee tonight, we recognised the importance of youth offending officers having a view on what would be most effective in working with parents who should be doing more.
It is right that the court retains the discretion to determine whether such interventions are well placed to support the child’s rehabilitation—so we are not opposed to that—and that it has access to information on their individual circumstances. However, as the Minister said at Second Reading, we will be reviewing the position on youth sentencing separately in light of the changes that the Bill will introduce in due course, and we will be very happy to return to these important matters then. Therefore, although we do not agree that primary legislation is necessary for a dedicated assessment of these orders, I can confirm to noble Lords that we will consider this matter.
Amendment 87 is in the name of the noble Lord, Lord Jackson of Peterborough, who is not in his place, but the noble and learned Lord, Lord Keen of Elie, has set out the issue. I thank the noble and learned Lord, but let us be clear that the most serious childhood offences which result in longer custodial sentences are dealt with in the Crown Court. Here, it is at the discretion of the independent judge whether to impose restrictions to protect the identity of a child defendant. Reporting restrictions exist to protect vulnerable child victims, witnesses and defendants. They are very important. Being named in the press can obviously have a significant negative impact on the safety, prospects and opportunities of a child. That said, in all cases, judges have discretion to lift reporting restrictions once a child has been convicted, or before, where they are considered unreasonable—for example, in the well-known case of Axel Rudakubana, who was 17 when charged with the Southport murders. The Government’s view is that our existing system strikes the right balance between the fundamental importance of open justice and proportionate safeguards for children. With that in mind, I ask the noble and learned Lord and the noble Lord not to press their amendments.
Lord Keen of Elie (Con)
Does the Minister acknowledge that there has been a very striking decline in the use of parenting and financial orders since 2010?
Lord Lemos (Lab)
We are conscious of that and we discussed it in our pre-briefing this morning, and we want to find out what that is all about. The important point to make at this stage, without jumping to conclusions, is that we want this to be part of the armoury, but we want youth offending officers to have discretion about what will really work with the parents. Anyway, you have got me on one of my favourite subjects, so I should get off it.
Lord Keen of Elie (Con)
I am obliged to the Minister for getting on and then getting off this topic. I beg leave to withdraw the amendment.
Lord Keen of Elie
“Child cruelty offences: notification and offender management requirements(1) A person (“relevant offender”) is subject to the notification requirements of subsections (2) and (3) for the period set out in subsection (4) if the relevant offender is convicted of an offence listed in subsection (6).(2) A relevant offender must notify to the police within the three days of the time of their conviction or their release from custody, and annually thereafter, providing —(a) the relevant offender’s date of birth,(b) their national insurance number,(c) their name on the notification date and, where using one or more other names on that date, each of those names,(d) their place of residence on the date of notification,(e) the address of any other premises in the United Kingdom at which, at the time the notification is given, they regularly reside or stay, and(f) any information that may be prescribed in regulations by the Secretary of State.(3) A relevant offender must notify to the police, within the period of three days beginning with the event occurring, about—(a) their use of a name which has not been notified to the police under subsection (2), (b) a change to their place or residence, and(c) any other prescribed change of circumstances as defined in regulations made under this section.(4) The dates of discharge from notification requirements under this section are the same as those set out in Section 88B of the Sexual Offences Act 2003.(5) The information required by subsections (2) and (3), once received, must be—(a) monitored regularly by the police and probation service, and(b) retained for the purposes of offender management.(6) The relevant offences are—(a) causing or allowing the death of a child or vulnerable adult, or allowing them to suffer serious harm (section 5 of the Domestic Violence, Crime and Victims Act 2004),(b) child cruelty, neglect and violence (section 1 of the Children and Young Persons Act 1933),(c) infanticide (section 1 of the Infanticide Act 1938),(d) exposing children whereby life is endangered (section 27 of the Offences Against the Person Act 1861),(e) an offence under sections 4, 18, 20, 21, 22, 23 or 47 of the Offences Against the Person Act 1860, if the victim is under the age of 16,(f) an offence under any of the following provisions of the Female Genital Mutilation Act 2003—(i) female genital mutilation (section 1),(ii) assisting a girl to mutilate her own genitalia (section 2),(iii) assisting a non-UK person to mutilate overseas a girl’s genitalia (section 3), and(g) cruelty to children (section 1 of the Children and Young Persons Act 1933).”Member's explanatory statement
This new clause would create notification requirements for people convicted of child cruelty, analogous to the Sex Offenders Register. Their information and personal details would be kept on record by the police for the purposes of offender management, with the aim of reducing the risk to children from future offences.
Lord Keen of Elie (Con)
My Lords, Amendment 48 seeks to establish a notification and offender management requirement clause for criminals convicted of child cruelty offences. For convicted child sex offenders, there already exist notification requirements, whereby those who have abused vulnerable and dependent children in the worst possible way must notify the police of their home address and other relevant details following their release from prison.
I know that the sex offender register is not a perfect system and that monitoring former convicts does not mean that we can control their every action, but it does act as a safeguard. It provides the police with the oversight needed to manage offenders and reduce the risk to victims, and it means that those who commit sex offences cannot just disappear back into the community. There is evidence that it is working, with sex offender reoffending rates having decreased in the past 15 years. Given that overall sexual offences have increased nearly fourfold over that same period, a decrease in reoffences does suggest that this part of the justice system is working. It is reasonable to argue that mandating the keeping of an offender register will have had some part to play in that reduction in the case of those offences.
It is unfortunate that similar provisions do not exist for those convicted of child cruelty offences. The offence is in a sense different, but the principle is largely similar. Child cruelty, like child sexual offences, is heinous, life-altering abuse to some of the most vulnerable members of our society. The only difference at present is that, once released, those guilty of such cruelty offences are not managed once their sentence and probation is over. A person can commit these horrific crimes—causing or allowing the death of a child, neglect and violence to a child or even female genital mutilation in some cases—and, once they have served a period of imprisonment, they are free to slip back into the community unnoticed. There is no centralised way for the police to know who these people are and where they are living.
This is all the more an issue given the fact that, in the majority of child cruelty cases, the offender very often has had parental responsibility for the victim. This means that they will often have connections to the child’s current guardian and in many cases to other family members with connections to the child. There is, therefore, the very heightened risk that they will be able to secure access to a child in these situations, yet there is no means of oversight or management of these people.
Amendment 48 seeks to correct this anomaly by introducing something analogous to the sex offender register. It would require those convicted of child cruelty offences to notify the police of their details following their release. They would need to share their home address, any other places of residence and any other name that they might choose to use. It would provide the police and probation services with the necessary information to identify individuals who might continue to pose a threat within a family community. It would give child victims some additional safeguard from the risk posed by such convicted offenders. It would also act as a deterrent to these offenders, just as entry in the child sex offenders register has done.
The child protection system should exist to save children from abusive circumstances and give them a measure of safety. This simple step of introducing a register would allow some additional protection for these victims and ensure a greater public awareness of the risks that such convicted persons would pose. I beg to move.
Lord Timpson (Lab)
My Lords, I am extremely grateful to the noble and learned Lord, Lord Keen, for raising this matter. I pay tribute to Helen Grant MP and her constituent, Paula Hudgell. They have campaigned tirelessly and movingly on this important issue. Earlier this week, the Deputy Prime Minister had the great honour of meeting Paula and Helen to hear the Hudgells’ story and learn more about their campaign. This Government are taking decisive action to protect our children from those who would commit abhorrent crimes against them.
Currently, under Sarah’s law, the police can and do proactively disclose information regarding offenders to members of the public when they believe that a child is at risk of serious harm. For example, if the police become aware of an adult who has ever had a conviction, caution or charge for child abuse having unsupervised access to a child, the police can and will disclose this to the person best able to protect that child—usually their parent, carer or guardian. Sarah’s law also enables members of the public to make an application to the police for this information if they are worried about child protection.
In the Crime and Policing Bill, this Government are going further. We are strengthening Sarah’s law by placing it on a statutory footing. The clauses in that Bill will mean that chief police officers will have a statutory duty to follow the Secretary of State’s guidance on Sarah’s law. In practice, this will reinforce the police’s responsibility to make disclosures whenever that is necessary to protect children. We have also committed over £2 billion to support the roll out of the families first partnership programme to improve the early identification of risks to children and to take appropriate action.
The Children’s Wellbeing and Schools Bill will establish multi-agency child protection teams in every area. Additionally, we are placing a new duty on safeguarding partners to include education and childcare settings in their multi-agency safeguarding arrangements. We want to ensure that every opportunity is taken to keep our children safe. We are not standing still on this issue. We are exploring the best way to close the gap that Paula has rightly identified. This is why I and Ministers in the Home Office have instructed our officials to explore options for tracking offenders and offences involving child cruelty. I ask the noble and learned Lord to withdraw this amendment.
Lord Keen of Elie (Con)
I thank the Minister. In the light of his undertaking that the Government are pursuing this matter—vigorously, I take it—and intending to produce something, whether they term it a register or otherwise, so that the police can not only disclose information but access information, which is a more critical element here, at this point I beg leave to withdraw the amendment.
Lord Keen of Elie
“(2) After paragraph 4(1) of Schedule 9 to the Sentencing Code insert—“(1A) The minimum number of days on which the offender may be instructed to participate in activities must be specified in the relevant order.”” Member’s explanatory statement
This amendment replaces the maximum-days requirement with a minimum number of days for rehabilitation activity requirements, ensuring that there is a minimum threshold of activity that offenders must complete.
Lord Keen of Elie (Con)
My Lords, repeated reference has already been made to the independence of the judiciary and to the need to allow the judiciary full discretion in the matter of sentencing, but the provisions in the Bill at Clauses 11 and 12 erode these principles and put the whole issue at risk. The requirements in these clauses will remove a degree of judicial discretion, transferring certain sentencing powers from the courts to the Probation Service, and ultimately, of course, to the Government.
We on these Benches believe that the judiciary, who are specifically trained and appointed, and not probation officers, are best equipped to make decisions on sentencing. Clause 11, as drafted, removes the requirement to specify the maximum number of activity days to be undertaken as part of a community order or a suspended sentence order. The Government’s intention appears to be to create flexibility for probation services, so that they can gauge and tailor the number of days that offenders must complete.
Of course, we appreciate that, at present, there is a discrepancy between the maximum days of activity ordered by the courts and the number completed in reality. But nowhere in the Bill does there appear to be, once the initial sentence order and length are passed, judicial oversight of the number of days that probation officers may then set; nor does there appear to be any minimum threshold or expectation of participation specified in the Bill.
Putting this conferral of sentencing power on to the Probation Service creates an obvious misalignment of, among other things, incentives. Overworked probation officers, already contending with quite unmanageable case loads, are liable to be motivated not only by what is right for rehabilitation and public safety but by what is administratively possible. The unavoidable consequence is that the number of activity days ordered will be determined by capacity pressures within the Probation Service rather than by the rehabilitation requirements of individual offenders. The clause, as currently drafted, could enable an offender to engage in little or no meaningful rehabilitative activity whatever. Such an outcome would, of course, be a betrayal of victims and simply an illusion of justice.
On the other hand, the judiciary are trained and entrusted to assess evidence, consider proportionality, and understand risk and the need to balance public protection with rehabilitations. It is in these circumstances that we give notice of our intention to oppose Clauses 11 and 12 standing part of the Bill.
Amendments 49 and 50 seek to remedy the issue of probation officers operating in a quasi-judicial capacity. Amendment 49 would ensure that the court specifies a minimum number of days required under probation activity requirement. This would mean that, rather than setting a maximum threshold, which is seldom met in practice, there would be no ambiguity for officers or offenders over the number of days that must be completed. This is a simple and practical proposal that has the effect of dealing with the impact of Clauses 11 and 12.
Amendment 50 would clarify in statute that, where activity days are to be set for offenders, the number of days must always be set by the court itself. Without these amendments, decisions relating to punishment will, effectively, be delegated from the court to the Probation Service, rather than being determined at the point of sentence by the judiciary, and we believe it is essential that it should remain in the hands of the judiciary.
I turn briefly to Amendments 125 and 126, which concern early termination of community orders and suspended sentences. These amendments would provide that a court may not terminate such orders early, unless a specified minimum proportion of rehabilitation days has actually been completed. This would prevent the unacceptable scenario in which an offender could be released from requirements without having undertaken the substance of the sentence that was originally imposed.
Again, at present, there are no checks or balances under the Bill to ensure that this is not the case. These amendments would ensure proper accountability and preserve the authority of the sentencing decisions made by the court, and they would also provide probation officers with a degree of flexibility. I hope that the Government recognise the constructive nature of these amendments.
We all recognise the intense pressure under which prisons and probation services currently operate, but the response to systemic problems cannot be to weaken judicial powers or diminish meaningful sentencing. Offenders must not be permitted to slip through the cracks in a system that is stretched to its limits. It is our duty in Parliament to reinforce judicial authority, not to erode it. It is for these reasons that I urge the Government to reconsider the implications of Clauses 11 and 12, and to recognise the importance of the amendments that have been tabled. Judicial sentencing power must remain with the courts, and I hope that the Government will listen to these concerns and engage constructively on this issue.
Lord Beith (LD)
My Lords, the noble and learned Lord, Lord Keen of Elie, has raised an interesting and very debatable question, which is what the role of the judiciary should be in allotting rehabilitation time and activity and what the role of the probation officer can reasonably be. In theory, I should be with him, because I am always anxious to protect the independence and autonomy of the judiciary, but I look at our court system, and what is feasible, and I look at the detailed work that would be necessary, which probation officers are trained and equipped for—not necessarily resources-equipped but equipped in terms of their training—and I am unconvinced that it would be a good idea to move away from what Clause 11 and 12 do towards a larger role for the judiciary.
I say that having gone, decades ago, to look at the court system in Texas, as the Minister himself has done more recently, and having seen proactive courts, with the judge handing out details of rehabilitation requirements and looking at people as individuals, and the applause ringing around the court when the judge commended the offender who had fulfilled the requirement, and the sight of one offender who had not fulfilled the requirement being taken away by the state marshal.
The whole set-up was very interesting, but very difficult to graft into our system without enlarging the judiciary substantially, giving it time to do this kind of thing. We are probably better to build on the foundation of the Probation Service, despite the fact that it went through such a terrible time with the privatisation process and is still well below the level it needs to be in terms of numbers and training. The Bill provides a more reliable route, even though my instinct is to be on the side of protecting the autonomy of the judiciary. This is a job that probation officers are probably in a better position to do than our hard-pressed judiciary.
Lord Timpson (Lab)
I have considered the amendments and thoughtful debate from the noble and learned Lord, Lord Keen, on this topic. Change is needed. The process evaluation of the rehabilitative activity requirement, or, as I prefer to call it, RAR days, published in May 2025, shows that the RAR is not working effectively. Offenders often do not understand what is expected of them, and magistrates sometimes sentence it as a catch-all.
Further to this published evidence, probation practitioners from Manchester to the Isle of Wight have told me personally that the way RAR is structured restricts their ability to rehabilitate offenders. From my experience of leading organisations, the people who are on the front line often give you the wisest advice. We value and trust our probation staff enormously. Their work is often unseen, but I deeply appreciate it. This change places professional judgment back at the heart of probation. We are enabling probation practitioners to utilise their professional expertise to ensure that rehabilitation is tailored to what works.
I reassure the noble and learned Lord, Lord Keen, that this change does not remove the court’s sentencing powers. It is and will remain for the court to determine whether to include this requirement when making an order. But the removal of court-specified maximum days will ensure that probation resources are directed to where they will have the most impact. It brings our approach to rehabilitation activity in line with how supervision is determined. Both are led by a thorough assessment of risk and need after sentencing. This does not change the fact that offenders are required to comply with the instructions of their probation officer. If they do not comply, they could face a return to court and receive tougher penalties.
I turn to the noble and learned Lord’s Amendments 125 and 126. The community sentences incentive scheme, set out in Clauses 36 and 37, already requires offenders to complete all court-ordered requirements before the community order—or, in the case of a suspended sentence order, the supervision period—can come to an end. This will include completing all the required activities under the new probation requirement. These clauses bring a principle of progression and incentivisation into community sentences to encourage good behaviour and motivate offenders to change.
This scheme was inspired by the model in Texas, which used incentives to reduce the prison population. It will mean that the Probation Service can encourage offenders to engage early, comply with their sentence requirements and complete rehabilitation work. This will free up staff time to focus on more serious and complex offenders in order to better protect the public and reduce reoffending. Probation practitioners will be responsible for determining the amount of rehabilitation activity that must be completed under the probation requirement. The measure requires them to complete it all before the community order or supervision period can be eligible for early termination.
Lord Keen of Elie (Con)
I thank the Minister for his answer and the noble Lord, Lord Beith, for his contribution. I fear that the Minister is not properly distinguishing between issues of rehabilitation and issues of sentencing. There is a matter of principle that has to be addressed in this context, and there is a risk that the Bill in its present form will turn sentencing into some form of administrative exercise performed by the Probation Service rather than by the court.
I believe we will have to return to this on Report, but I look forward to discussing the matter further with the Minister. At this time, I withdraw my amendment.