Lord Keen of Elie
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Lord Marks of Henley-on-Thames (LD)
Amendment 60 in the name of my noble friend Lady Hamwee would make it clear that a public event attendance prohibition requirement would not be available if its enforcement was not reasonably practicable. I share the doubts of my noble friend on practicability. Indeed, the widest orders in this category—that is, prohibiting attendance at any public event rather than particular events—may generally be too wide in any case, because it is going to be very difficult to define a “public event”.
Moving to a more general point, one of the difficulties with the restrictions in this group is the difficulty not just with practicability but with enforcement, spoken to in the last group by the noble Baroness, Lady Fox. The noble Viscount, Lord Hailsham, foresaw difficulties in determining practicability, which he thought might be fatal to these conditions. I can see his point that there are difficulties. The question for the Committee in considering whether these conditions ought to be permitted is to see how far they would in practice be imposed if not practicable, and then to consider the question of practicability.
I suggest that the answer to the difficulties is a combination of the justification points relating to community orders, if I can put it that way, and the enforcement possibilities offered by new technology and intelligence. As far as intelligence is concerned, I take the point made by the noble Lord, Lord Jackson, that it is pretty easy to find out where the pubs are. But there are other difficulties of intelligence which new technology and intelligence-gathering techniques might be needed to address.
However, when I talk about justification, it is right that we should remind ourselves that the conditions are intended to augment community orders and suspended sentences, and those sentences are intended to be, in part at least, punishment, no differently from a curfew order or a residence requirement. They are in part, therefore, punitive. However, the alternative may be custody, which is a far more serious punishment, and one that with the best will in the world offers a substantially reduced chance of the offender having the opportunity to undertake any rehabilitative activity at all.
The other point is new technology and intelligence techniques. Noble Lords have mentioned electronic monitoring, as well as alcohol monitoring and other devices, but electronic monitoring using tagging is a considerable part of the answer. Although I have some sympathy with the noble Baroness, Lady Fox, on the civil liberties implications of these conditions, monitoring by tagging is no different from monitoring by curfew or by a residence requirement, which we have had for a very great deal of time, but the new technology enables a more flexible and wider approach to conditions. However, I remind the noble Baroness, Lady Fox, that civil liberties are restricted at their very worst by imposing sentences of immediate imprisonment where people are in custody.
Amendment 106 in my name would allow exemptions or variations by probation officers to allow a person to attend employment, education or rehabilitation programmes, but those exemptions or variations would be exceptions to the imposition of the restriction zone condition. The amendment also requires a report on the operation of restriction zone conditions.
The purpose of this amendment in each of its sub-clauses is to enable both the courts when imposing conditions and probation professionals to weigh in the balance, on the one hand, the extra security and the protection of victims or potential victims which may be offered by the imposition of a restriction zone condition, against on the other the desirability of encouraging offenders to benefit from opportunities of employment, education or rehabilitative activity. It is a classic balancing exercise of a type that is undertaken every day by members of the public and professionals in daily life when they consider questions of risk against opportunity, and that is really what we are talking about here. The point is that our amendment does not come down exclusively on one side or the other. The idea of it is to enable the imposition of these restriction zone conditions, not to conflict with the provision of educational or other opportunities. So, the condition could still be made, but subject to those exemptions or restrictions, which will permit the desirable activity.
The noble Lord, Lord Jackson, supporting my noble friend Lady Hamwee in her amendment, said that it was unfair to oblige venues and others to police these conditions, and of course I see that. But these conditions are not perfect, they will not be perfectly enforceable, and they will not be completely practicable in the sense that they will always prevent the restricted activity. However, for the most part, in practice, offenders are likely to observe these conditions simply because they are there, and for fear of being caught and punished for their breach.
Questions of affordability were raised, and of course more resources are going to be needed to police and enforce these conditions, but those costs have to be measured against the costs of custody.
The noble Baroness, Lady Prashar, raised an interesting point with her amendment when she suggested that the Parole Board should have oversight of restriction zones. For my part, I am not quite sure how that will work—it seems an onerous obligation on the Parole Board—but I take her point that there should be some oversight of restriction zones. In a general sense, that could be undertaken by the Sentencing Council in considering sentencing guidelines to judges on how they are to be imposed, and by training of probation officers in how they are to be implemented.
On electronic monitoring, of which the noble Baroness, Lady Fox, spoke, if it is proportionate and appropriate and is subject to restrictions that are decided upon to ensure that it is, then, broadly speaking, I agree with her points.
Lord Keen of Elie (Con)
My Lords, I will begin by speaking to the probing amendments tabled by my noble friend Lord Jackson of Peterborough. In doing so, I am sure I will reflect the concerns already expressed in other parts of the Committee about these provisions in the Bill.
It has already been made clear that we on these Benches do not in principle oppose the idea of giving courts new tools to protect the public. These are tools that might, if properly designed and enforced, help to manage some offenders in the community rather than defaulting to custody, and we support that aim. But Clauses 14 and 15 do little more than say that courts now have these powers. The Government have provided little, if any, detail as to how these powers will be enforced. A ban that cannot be enforced is a false promise and, indeed, as a consequence, a danger to public confidence.
The Government want this House to support the expansion of suspended sentences and community-based orders. Yet to support them in this effort, they are asking us to sign off on a national regime of pub, club, concert and public event bans, without explaining how these will function on the ground. There is no credible enforcement plan. Are we seriously proposing that every pub, bar, off-licence and concert venue across the country becomes a mini probation checkpoint? Do we expect landlords, doormen, waiters and bar staff to act as de facto probation officers, verifying the identity of every customer against confidential court orders? The result would be unacceptable. If such pub bans become unenforceable and are reduced to a tick-box exercise in sentencing documents while nothing on the ground actually changes, the sanction will become meaningless. That would not be an improvement in justice.
The burden that such a regime would place on the hospitality and nightlife sector would be considerable. Pubs and nightlife venues are already under severe financial and structural pressure, as we know from various reports from the Night Time Industries Association. As a consequence of the national insurance increases, further tax pressures and red tape imposed on these venues by the Government, some 209 pubs—an average of eight a week—have closed permanently and many more continue to struggle. It is simply unrealistic, never mind unfair, to add to this burden by requiring them to police court-imposed bans on individuals under threat of legal liability.
The Government may argue that the burden of enforcement will not lie on public events or drinking establishments, but, in that case, they must lay out in detail how they plan on enforcing these orders with a Probation Service that, as everyone would accept, is already under severe strain. Simply saying that they have additional funding is not enough. We require specifics if we are to trust that the Government can cope with the pressures of managing offenders in the community. If the Government cannot explain clearly how these bans will be notified, enforced or policed, how can this House responsibly vote for this provision? We on these Benches must ask: on what basis are we expected to vote to expand suspended sentences for a broad group of offenders, if we cannot be satisfied that community supervision will actually work and without the most basic detail on banning access to pubs or events?
The amendments offer a simple test. They would require the Government, before we hand out sweeping powers to courts, to set out a clear, practical enforcement regime. They demand a reasonable amount of certainty. Who will be notified: pubs, events, promoters, the police? What will happen when an offender is banned from public events or drinking establishments? How will these bans be communicated? How will they be recorded? How will they be checked? What enforcement mechanisms will be used if an offender breaches the ban? Who will bear the cost and responsibility of monitoring: the state, the Probation Service or venues? If the Government cannot provide that clarity, these provisions risk being no more than symbolic restrictions. They will simply result in theatrical sentencing with no real-world effect, and that, in turn, will undermine public confidence and public safety.
The choice is not between doing nothing and embracing these sweeping new powers; it is between legislation grounded in operational reality and legislation built on aspiration and illusion. These amendments do not oppose the idea of community-based orders; they demand that, if we are to entrust courts and probation with greater powers, those powers must be backed by a robust, enforceable system and not simply by faith. We owe that to the victims of crime, to the public, and to the men and women who work in establishments such as pubs and other public venues.
The noble Baroness, Lady Hamwee, moved her Amendment 60, which is intended to probe the enforceability of public event attendance prohibition requirements, which points to another important question that is central to the debate on these orders. The noble Lord, Lord Marks, spoke to his Amendment 106, which would allow for exemptions to restriction zone conditions, such as to allow a person to attend employment, education or rehabilitation programmes. I would have thought that these would be included in the specified restriction zone, but I look forward to the Government’s response on these points.
On the part of the amendment that requires an annual report on the orders’ use and effectiveness, we on these Benches support the underlying sentiment. Without the requisite evidence, we cannot be sure that the provisions in the Bill are working or will work. We therefore fully support the amendments in the name of my noble friend Lord Jackson. We look forward to hearing the Minister’s response to these important probing amendments.
Lord Keen of Elie
“Public event attendance prohibition statistics: duty to publish(1) The Secretary of State must, within six months of the day on which this Act is passed, direct His Majesty’s Prison and Probation Service to record and publish, in relation to all offenders recorded who have breached a public event attendance prohibition requirement—(a) the total number of breaches;(b) a breakdown of the prior or associated offence or offences for which those offenders were given a public event attendance prohibition requirement;(c) the number of offenders who have breached the public event attendance prohibition requirement on more than one occasion, recorded by number of repeat breaches.(2) The data recorded under subsection (1) must be compiled and published separately in respect of each of the following kinds of public event attendance prohibition requirement—(a) a requirement prohibiting attendance at a specified public event, (b) a requirement prohibiting attendance at public events of a specified description, and(c) a requirement prohibiting attendance at any public event.(3) The Secretary of State must make arrangements for the data recorded under subsection (1) to be published and laid before Parliament—(a) within 12 months of the day on which this Act is passed, and(b) annually thereafter.”Member’s explanatory statement
This new clause would require HMPPS to publish the number of offenders who breach public attendance prohibition requirements and to log what their associated offences were.
Lord Keen of Elie (Con)
My Lords, these amendments were tabled by me and my noble friend Lord Sandhurst.
As we have already seen, the Bill introduces new prohibition powers: prohibitions on attending public events, restrictions on entering drinking establishments, restriction zones limiting movement and electronic monitoring to enforce compliance. In principle this all sounds very sensible, but we must again ask the critical question: how will these powers work on the ground?
On the prohibitions with respect to drinking establishments, legally the offender must comply but enforcement is then shared. Probation must monitor and the police must act. In practice, this is far from straightforward. How will breaches be reliably detected? GPS or electronic monitoring may indicate proximity but cannot confirm entry. Reporting from licensees or police may be inconsistent. Once a breach is detected, how quickly can probation services respond and are resources sufficient to manage multiple offenders across wide areas? Without clarity, we cannot be confident that these powers will work.
That is precisely why Amendments 71 and 76 are tabled. They would require the Probation Service to record and publish breaches, repeat breaches and underlying offences. They also probe the reliability of electronic monitoring. Can GPS monitoring operate reliably in towns, cities and rural areas? Will probation teams receive training to know how and when to respond? As I have said before, we know that probation services are already stretched. Surely new powers that add a substantial responsibility to their workload have to be considered with care. We simply seek clarity as to how these services will be managed in these circumstances.
These amendments come from a place of reality, not of opposition. They affirm the Government’s policy while probing whether it can be delivered reliably. I look forward to the Minister’s response on how these powers will operate in practice. I beg to move.
Lord Timpson (Lab)
I thank the noble and learned Lord, Lord Keen, and the noble Lord, Lord Sandhurst, for their amendments. The new community requirements in Clauses 13 to 16 are vital reforms. I am glad that I have had the opportunity to speak to them in some detail today. Amendments 65, 71 and 75 seek to require HMPPS to publish the number of offenders who breach these requirements and to log what their associated offences were. While I am sympathetic to the intent behind this, we do not agree that it is necessary. The Ministry of Justice already publishes detailed sentence outcome statistics. These include the type of disposals handed out at court and are split by detailed offences and offender characteristic. We regularly assess the effectiveness of all community requirements.
Furthermore, HMPPS publishes a range of staffing and case load data on a quarterly basis. We must be conscious of adding more work into the service. We also place great value on the independent oversight and assurance provided by HM Inspectorate of Probation. It already inspects the service and provides insight into how it is performing. Given the information that is already available, we do not agree that adding a statutory requirement to publish this information is necessary or proportionate. But I assure the noble and learned Lord that I will keep an open mind. I will continue to review regularly what data is published, what can be stopped and what can be added.
Amendments 74 and 76 probe the use of electronic monitoring to enforce restriction zones as part of a community or suspended sentence order. I am grateful to the noble and learned Lord for tabling these amendments. With regard to Amendment 74, I can assure him that electronic monitoring will be imposed alongside these orders in the vast majority of cases. However, electronic monitoring is not appropriate in all cases. Some offenders have no fixed abode. They may live complex and chaotic lifestyles. Imposing an electronic monitoring requirement would likely set up these individuals to fail, instead of helping them to improve outcomes for victims, the public and the offender themselves. A court will be able to impose a restriction zone without electronic monitoring when it cannot obtain the consent of someone whose co-operation is required, such as the home owner, where the appropriate local arrangements are not in place to enable electronic monitoring, or where it would be inappropriate. It is right that the decision about what requirements to include as part of the sentence sits with the judiciary hearing the individual case.
If a court does not believe that a restriction zone will be effective without electronic monitoring, it has a range of other requirements at its disposal. When a requirement is not electronically monitored, the Probation Service will monitor offenders’ behaviour for any potential breach. It will have a suite of options available to respond to breaches if it identifies that they have not complied—for example, from police intelligence or victim concerns.
I will end by briefly turning to the question of how these are to be monitored in practice and the reliability of the technology that allows the Probation Service to do so. The use of electronic monitoring to enforce these requirements will mean that we receive retrospective data that provides clear evidence of an individual’s whereabouts. This ensures that those receiving a restriction zone are robustly monitored. GPS is a reliable technology that has been part of electronic monitoring since 2018. This will allow the Probation Service to assess whether someone has breached their restriction zone. As I have said before, if this happens, probation staff have a range of enforcement options at their disposal.
I thank the noble and learned Lord for the constructive discussions on these matters and hope that I have provided sufficient reassurance on the points raised. I therefore urge him to withdraw Amendment 65.
Lord Keen of Elie (Con)
My Lords, we have already discussed why transparency, reporting and practical assurances are essential.
First, enforcement is only as good as the system that is supporting it. It is not enough to create restrictions in law if those tasked with monitoring them lack the resources and capacity to act effectively. Secondly, repeat offenders are a particular concern. If data on repeated breaches is not recorded and published, the restrictions risk being meaningless for those most likely to violate them. Thirdly, public confidence is at stake here. To create a law that cannot be implemented correctly is unwise. Restrictions that are not transparent, not measurable and not enforceable will undermine trust in the entire system.
These amendments are not intended as a challenge to the principles in the Bill. They are seeking operational clarity. Therefore, while at this time I am willing not to press them, I indicate to the Minister that we will return to them at a later stage.