PARLIAMENTARY DEBATE
Police, Crime, Sentencing and Courts Bill (Thirteenth sitting) - 15 June 2021 (Commons/Public Bill Committees)

On a point of order, Sir Charles. Good morning to you. I made a small but significant and totally unintentional mistake in one of my speeches last week. In the debate relating to clause 100, I referenced the Sentencing Council and said that it had expressed concern about the reasoning behind the proposed provision. The council had not; the comments made should have been attributed to the Sentencing Academy. I apologise to both organisations for the error, and I am pleased to set the record straight.

What assessment has the Minister made of the effect on the prison population, particularly in Wales, which already has the highest rate of imprisonment in western Europe with 154 prisoners per 100,000 of the population of Wales, compared with 141 per 100,000 in England? Given the possible effects of inflation on the length of sentences, what provision will he make specifically for Welsh prisons to cope with that?

Building an extra 10,000 prison cells is very costly. Does the Minister agree that investing more in rehabilitation and preventive programmes might be a better use of the money?

Clause 106, as we have heard, follows the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, which altered the automatic release point for offenders who have committed a specific sexual or violent offence. As the Minister said, the effect of the release of prisoners order was to move the automatic release point from halfway to two thirds of an eligible prisoner’s sentence, and would apply to those found guilty of specific sexual or violent offences for which the penalty is life, and who were sentenced to seven years or more in prison.

Clause 106 implements the proposal in the “A Smarter Approach to Sentencing” White Paper to extend these changes to include sentences of between four and seven years for any of the sexual offences already specified, but only to some of the specified violent offences. That raises a point of concern for the Opposition. Why does the clause apply to all the sexual offences covered by the release of prisoners order, but only some of the violent offences?

Clause 106 will apply only to manslaughter, soliciting murder, attempted murder, and wounding causing grievous bodily harm with intent. This is precisely the point that the Opposition are trying to make. First, the release of prisoners order fundamentally changed the sentencing and release regime. Now the Government propose to extend the regime, but only to some of the original offences, with the other offences remaining the same. How on earth can that do anything but confuse an already notoriously confused system? I have asked before, what is the point of the remarkable work of the Law Commission on producing a much simplified sentencing code if the Government continue to tinker with sentencing and release provisions?

It is not only the Opposition who are concerned by the direction of travel the Government are taking on sentencing complexity. After considering clause 106, the Sentencing Academy agreed that its inclusion,

“unquestionably makes sentencing more complex and less intelligible to the public. Anecdotal evidence suggests that the judiciary are already struggling in discharging their statutory duty to explain the effect of the sentence as a result of the SI 2020/158 change. This proposal will make this task more difficult and result in a greater number of errors.”

The academy goes on to express its concerns in full:

“We expressed concerns about the reforms last year and this provision exacerbates our concern. Proportionate sentencing is not well-served by a system in which identical sentence lengths have a significantly diverging impact in practice: two nine year sentences should carry the same penal weight; it should not mean six years in custody for one offence and four-and-a-half years in custody for another. The decision to exclude some violent offences from this proposal makes the system yet more perplexing: how can a seven year sentence for kidnapping justify four years and eight months in prison when a six year sentence for the same offence merits three years?”

I wonder if the Minister could explain that point to the Committee.

Let me be clear: Labour supports moves to ensure that the most serious and violent criminals receive longer sentences when there is evidence that their sentences do not match the severity of their crimes. That is why the Opposition supported the Government’s moves to introduce clause 101 to extend whole-life orders for the premeditated murder of a child; clause 102 to extend whole-life orders to those who are 18 to 20 and have committed particularly heinous crimes; and clause 103 to increase the starting points for murder committed as a child. However, we cannot support a series of yet more changes to sentencing and release, which will only further confuse the system and make the task of members of the judiciary even more difficult, resulting in a greater number of sentencing errors.

The Prison Reform Trust makes a good point on the Government’s proposed changes to sentencing and release when it says,

“that only serves to demonstrate the complexity of sentencing law in this area, and the extent to which the government adds to that complexity every time it responds to an individual crime by promising a change in sentencing law.”

If the Government want to ensure that serious violent and sex offenders spend longer in prison, they can easily do so simply by increasing the maximum sentence length for the relevant offences. Taking that route rather than what the Sentencing Academy describes as,

“sentence inflation via the back door”

would not lead to judges being confused and making sentencing errors. Moreover, it would not lead to the public being confused and losing faith in our sentencing system. Taking that route would also mean that prisoners spend longer in jail without having to lose out on the rehabilitative properties of spending half their sentence in the community.

That brings me to another fundamental concern that the Opposition have with clause 106. By requiring an offender to spend additional time in prison, the amount of time that they would spend in the community under supervision would decrease significantly. As the Howard League notes, we know that reducing

“the amount of time which people who have committed serious offences spend under the supervision of probation services in the community…is likely to undermine public safety rather than helping to keep victims and the public safe. Though there is no single model of probation supervision, a rapid evidence review across jurisdictions and models suggests that community supervision in itself reduces reoffending—unlike time in prison, which increases reoffending rates.”

To sum up, the Opposition agree with the Government that where evidence exists that sentences do not properly reflect the severity of the crimes committed, sentencing reform should absolutely be an option. None the less, sentencing reform should be properly considered and guided by the principles set out by the Lord Chancellor in his foreword to the White Paper. Sentences should make sense to victims, members of the judiciary and legal practitioners. More importantly, sentences should make sense to the general public. Only when the general public and victims of crime understand our sentencing regime will they have full faith in it. We believe clause 106 goes against those principles, and for that reason we cannot support it.

The Minister likes to have his little digs; I think he quite enjoys them. I assure the Committee and everybody else that I have full confidence in the judiciary. If the Minister had as much confidence as I do, perhaps he would not be mucking about so much with the system and would leave the judiciary to sentence within the regime that exists.

As we have heard, as with clause 106 the purpose of clause 107 is to increase the proportion of the time certain offenders spend their sentence in jail. In this case, we are talking about offenders of particular concern, meaning those who have been convicted of one or two child sexual offences or certain terrorist offences. As set out by the Minister, as things currently stand different release arrangements apply to offenders of particular concern convicted of terror offences and those convicted of child sexual offences.

Clause 107 would change that by ensuring that all offenders of particular concern would serve two thirds rather than one half of their sentence in prison, before applying to the Parole Board to be released. Given that I have spoken extensively on the same matter, or very similar matters, in clauses 105 and 106, this speech will be very short. For the reasons I set out in relation to those clauses, we cannot support clause 107. Although the Opposition agree that those who have committed the most serious violent and sexual offences should spend longer in prison, we do not believe that the method set out in clauses 105 to 107 is the best vehicle to meet this policy objective.

The Opposition cannot support more changes to the sentencing and release regimes. Contrary to what the Minister says, that will further complicate our sentencing system and risk victims of crime and members of the public losing faith in it. If the Government want to ensure that offenders spend longer in prison, where the evidence base suggests they should, we believe there are better ways of achieving that goal.

No, we did not.

The Minister will see from an upcoming amendment that I am interested in this clause. Can he give some clarification? Will he define “dangerous”? I assume that is within the prison context, as opposed to the crime being served for.

Will the Minister give some details on when and why the Secretary of State might intervene? At the moment, depending on the Parole Board’s decision, the Secretary of State already has 21 days to intervene. Will he explain what the clause will bring to the table?

Will the Minister confirm something? In the event of a dangerous person—a radicalised person—being required to serve their full sentence, will they be released into the community without any supervision or licence conditions when they get to the end of the sentence?

Why?

But surely the point remains that this person, who is said to be a danger to the public although there may not be sufficient evidence to convict him of another charge, will be released into the community at the end of their sentence—after six years, 10 years or whatever—and will still be the same dangerous person he was thought to be by the Lord Chancellor, through the Parole Board, when he was in prison.

The old IPP sentences had their problems; they were much too widely used and were not originally intended to be that widely used. There was an issue about them, certainly. However, would not that kind of sentence—one that was indeterminate but able to be cut short when the individual concerned could demonstrate that they were no longer dangerous—be the answer in some of the kinds of tangents that the Minister is talking about?

The Minister seems to be tying himself in knots, to say, “Well, it’s going to be either three years or six years, but we all know that the person is coming out at the end”. Originally, IPP sentences were legislated for to deal with this very issue, but of course they ended up being too widely used. Is there not a better way of reintroducing some kind of IPP sentences that would enable greater safety but be much more narrowly used?

Yes.

I was not suggesting that; I was not suggesting that people who have been given determinate sentences should then arbitrarily suddenly find themselves with an indeterminate sentence. What I was suggesting was that perhaps there are a small number of cases for which it would be appropriate to reintroduce the possibility for judges to give indeterminate sentences again. The problem with the IPP was that it was much too widely used; I think the wording was too broad and it was much too widely used by sentencers. But the purpose of it was to deal with just these cases that the Minister is talking about.

I am not suggesting that somebody who has been given a determinate sentence should then arbitrarily be given an indeterminate sentence. However, if an indeterminate sentence for public protection was available in very narrow circumstances to judges, would that not fill this gap in a more coherent way than the way in which the Minister is trying to do it?

Not quite. I was suggesting that perhaps the Minister should legislate for indeterminate sentences in particular circumstances and give the judge that discretion, but in a much narrower band of offences than those that ended up getting indeterminate sentences in the past. Indeterminate sentences have all been abolished now—they cannot be used. If I might say so, it seems that the Minister is trying to deal with the very issue that they were introduced to deal with in a very convoluted manner.

As we have heard, clause 108 would create a new power to allow the Lord Chancellor to refer a prisoner to the Parole Board who would otherwise be eligible for automatic release, if he believes that they have become a significant danger to the public while in prison. Rather than being freed at the halfway or two-thirds point of a sentence, they would be released only if the Parole Board thought it was safe. If the Parole Board did not believe it was safe, they would continue to serve the rest of their sentence in prison, unless the Parole Board consequently changed its mind. As the Minister has confirmed, if they served the whole of their sentence in prison, they would then be released into the community without any licence conditions or supervision.

It is safe to say that the Opposition have several serious concerns with clause 108, and largely agree with the Prison Reform Trust in believing that

“this clause creates a constitutional and legal mess”.

Let us start with the basics. As is set out in the explanatory notes to the Bill, this is a brand new power, the beneficiary of whom is the Lord Chancellor.

The Lord Chancellor is the beneficiary, because he is given a new power to change things and refer.

The effect of the clause is that, for the first time for these types of prisoners, the Lord Chancellor will have the power effectively to refer a prisoner to have their sentence conditions varied, should the Parole Board agree. We all understand that. For example, if a prisoner is sentenced to five years for shoplifting, under current legislation they would become eligible to be automatically released on licence at the halfway point of their sentence. Under the new provision, if the Lord Chancellor believes that the shoplifter had become radicalised in prison, he could refer the prisoner to the Parole Board, which could prevent his automatic release. That would, of course, be without the prisoner ever having been charged or found guilty of any further offence while in prison.

That raises two fundamental questions. First, is it right or proper for the Lord Chancellor to be involved in the management of individual prisoners? How will he make the decision to refer somebody to the Parole Board? What criteria will be used for the Lord Chancellor to make such a referral decision? Secondly, is this not a case of punishment without due process, and therefore unlawful?

On the first point, I note the remarks of the Sentencing Academy on clause 108:

“giving the Secretary of State for Justice the power to intervene in the management of an individual offender’s sentence gives rise to concern about undue political interference in the sentences of individual offenders.”

I accept that the final decision rests with the Parole Board. That raises the all-important question of whether the Secretary of State for Justice, who is after all a member of the Government, is really the right person to decide who should be referred to the Parole Board in a prison that could be hundreds of miles away.

That is by no means the only question provoked by clause 108, as currently drafted. The questions go on and on. Perhaps the Minister will be good enough to provide clarity on at least the following points today. What evidential tests will have to be satisfied for the Secretary of State to make a referral to the Parole Board, and who will be responsible for collecting that evidence? What standard of proof will the Secretary of State use when deciding to make a referral or not? Will he have to be satisfied that someone has become a significant danger on the balance of probabilities, or beyond reasonable doubt? If the Secretary of State is so concerned that someone has become radicalised or poses a serious threat, why not simply take that person to court and allow a judge to consider the evidence? Are the Government simply trying to avoid the inconvenience of having to provide evidence and have it tested in open court? Is it not a dangerous precedent for the Secretary of State to become involved in determinations made about individual cases?

That brings me to my next concern. What happens to a prisoner who, after being referred by the Secretary of State to the Parole Board, is refused their automatic release? As I understand it, if the offender is denied automatic release, he or she could spend the rest of their custodial sentence in prison, rather than some of it on licence in the community. Those prisoners will be released before the end of their sentence only if and when the Parole Board authorises it.

That raises two further concerns. First, it would create what Jonathan Hall, the independent reviewer of terrorism legislation, has described as a “cliff-edge effect”, which is where an offender who has specifically been identified as being a significant danger to the public while in prison spends their entire sentence in custody and is released into the community without any licence or monitoring conditions. Let us think about a possible scenario. A prisoner has been convicted for non-terrorist or non-violent crime and is sentenced in court to, say, five years. They are specifically told by the court that they can expect to be automatically released from prison at the halfway point of their sentence—in that case, two and a half years. Instead, they receive the news that the Secretary of State has reason to believe that they have become a danger to society while in prison. The Parole Board agrees, and their sentence is retrospectively changed so that they can spend the whole sentence in prison.

I am sure the Minister will agree that that offender would have some right to be angry with the criminal justice system and society at large. They would then be released, harbouring that anger, without any licence conditions or supervision. Does the Minister not see what the consequences of that could be? Would it not be better simply to collect any evidence and allow a court to come to a determination? Surely, if the evidence of what is effectively an offence exists, the person should be charged and sentenced for that offence.

During the evidence session on 18 May, the Minister tried to convince the Committee that clause 108 would not create that cliff-edge effect by indicating that if the authorities were particularly concerned about an individual offender, the Home Secretary could impose a terrorism prevention and investigation measure on them. However, that excuse simply does not stack up. As Jonathan Hall, QC, pointed out, TPIMs are extremely resource-intensive and very rarely used, especially in these circumstances. As the Minister will be aware, for each of the three-month periods between 1 December 2018 and 30 November 2019, only three to five TPIMs were in place nationally.

It was not my intention to make a speech on this clause, but more questions are being raised than answered, and I hope that the Minister will be able to answer a few of them.

I share the concerns raised by my hon. Friend the Member for Stockton North, and there are many questions, but I have always had a problem with the idea of someone being given a sentence and serving only a third or two thirds of it. I would much rather that it were clear that a sentence was for this amount of time in prison and that amount of time under licence in the community, because I think that would give clarity. My concern about the clause is that it almost creates a hierarchy of sentencing, which I find confusing.

I know well only the behaviour of sexual offenders, and I am yet to find any form of rehabilitation or punishment that effectively changes their behaviour, so I could argue persuasively here that they will always be a danger and that there is always a potential risk. I also believe, however, that we need a justice system that is fair and transparent so that we can follow it, and I am not sure that the clause would allow us to do that. I am concerned that if someone is released at the end of their sentence after serving a full term, the probation, rehabilitation and limits that a licence would put around them might not be there, meaning that their transition into the community is abrupt and does not have the level of support that is needed to curb some people’s behaviour.

I am concerned that the Minister did not once mention whether victims would be consulted. My amendment 145 deals with that. Who could be better than victims and survivors to say whether a person is a danger and to influence the decision of the Lord Chancellor? I am also concerned that there may be subjectivity in decisions made by this Lord Chancellor and future Lord Chancellors—that cannot be allowed to happen. I really hope that the Minister will give some reassurances on the points that I have raised, because at the moment the clause would not be a successful one.

I want to raise one particular point. Is the Minister aware of the Welsh Government’s recently published race equality action plan, which states its commitment to developing a race equality delivery plan that will address the over-representation of black, Asian and minority ethnic people in the criminal justice system? Indeed, in Wales, more black and minority ethnic people are in prison than elsewhere in the United Kingdom. Does he share my concern that this and other clauses might militate against the policy of the Senedd in Cardiff, a legislative public body that has been democratically elected?

Will the hon. Member give way?

I am grateful to the Minister for giving way. For me, the issue is the basis on which the Lord Chancellor makes the decision to refer. What evidence test is used and who gathers that particular evidence?

I asked the Minister to address the issue of the number of TPIMs likely to be applied in the event of somebody considered to be dangerous when leaving prison.

The Minister has given a full response to some of the issues I raised but not a sufficient one. I am worried about the evidential test in relation to this matter. The Minister said if there is sufficient evidence for a prosecution while the person remains in prison, there will be a prosecution, but if that evidence does not meet a criminal test, there can be no prosecution and this legislation will be relied on to retain the person in prison following a referral to the Parole Board. We remain very concerned about that and about the standard of proof, which we also talked about.

Ultimately, this issue is about how prisoners are managed in the longer term and their rehabilitation. The fact remains that someone who is considered dangerous, though not dangerous enough to be prosecuted, can be released into the community at the end of their sentence without any supervision or conditions. I accept that the Minister says the security services or police might keep an eye on them. That is insufficient if somebody is considered to be so dangerous. On that basis, we still oppose the clause.

Question put, That the clause stand part of the Bill.

I beg to move amendment 145, in clause 109, page 98, line 41, at beginning insert—

‘(1) In subsection (3) of section 239 of the Criminal Justice Act 2003 (the Parole Board), after 3(b) insert—

“(c) the views of the victim or victims of the crime to which the case relates””

This amendment would amend the Criminal Justice Act 2003 to ensure victims/survivors are consulted in parole decisions which will affect them.

I have tabled the amendment because two survivors have raised this as an issue with me this year. I have briefly spoken to the Minister because I am not sure that the amendment will achieve the job I hope it will. By raising it, I hope the Minister will work with me to come up with a solution, because we have a real problem here.

The amendment aims to amend the Criminal Justice Act 2003, to ensure that victims and survivors are consulted on parole decisions that affect them. Currently, victims of crime, such as child abuse, can submit a victim impact statement before it is decided whether the abuser will receive parole. Victims should be informed when their abuser is released from prison or is on parole. However, too often that process is not carried out and victims are unaware that their abuser has been released from prison, or has been moved to a different category of prison.

The all-party parliamentary group for adult survivors of childhood sexual abuse found in its survey that as many as 75% of victims are not informed about their perpetrator being released on parole. One survivor who contributed to the report said:

“I found out my abuser was living nearby. In a town I visited regularly with my children for their sports club. And nobody bothered to inform me. I found this completely unacceptable.”

The shock and fear of finding out unexpectedly can be incredibly distressing for victims. Another survivor said:

“I was petrified because they gave him my name and all he’s got to do is look on the electoral roll and he could find me.”

Including victims and survivors in the parole decision-making process would let them understand how and why decisions are made. In discussion of the previous clause, the Minister presented an argument around the word “dangerous” and what makes an offender dangerous. Who better to feed in that information to the Parole Board’s decisions or the Lord Chancellor’s decisions than the victims and survivors themselves? Furthermore, allowing survivors to contribute to the process would ensure their voice is heard and the terror they have experienced in the past will not be relived—if they are listened to.

My amendment would ensure the Parole Board must consult with the victim during any decisions that would give recommendations resulting in parole for the offender. It would amend the Criminal Justice Act 2003, so the Parole Board must take account of the views of the person to whom the case is related. If it becomes a legal necessity for the Parole Board to consult with the victim, the potential for them to not be informed would not be an issue.

In 2019, the Government pledged to allow victims into parole hearings and, in 2020, they also consulted on making some parole hearings open to victims. Both of those followed the Worboys case, which exposed the failures of the parole process. At the time, the Government said they wanted to increase survivors’ ability to challenge release decisions if they felt the decision was flawed. That would save time and resources by consulting with the victim before the decision is made. The current system is not working for victims. We need a justice system that puts victims at the heart of its decisions.

This is not me just making a speech. As I said earlier, this is because I have two cases at the moment where the parole process has completely failed. Both relate to Rotherham survivors of past historic child sexual exploitation, and the first case is a survivor who I will call Elizabeth. The perpetrator was sentenced to nine years for two counts of rape of a girl under 16 in 2018. They were transferred after two and a half years to a category D prison, which we would view as an open prison. They were also told they could have day release but for covid-19.

The victim had signed up to the victim contact scheme, which should have ensured she was notified and provided with information about key stages in the offender’s sentence, including for those cases where release falls to the Parole Board. She should have been consulted on the timing of the Parole Board’s review and whether the offender was released or moved to open conditions. All of that should have been relayed to her. The victim should have been notified that the transfer to open conditions was being considered, and then she should have been told of the outcome. At the moment, victims have only a right of notification, and notification took place, in this case, after the decision was made.

I raised the issue with the Minister, who responded, explaining the legal position that, in accordance with legislation at the time, the offender is required to serve half of the sentence in custody, with the remaining period served in the community on licence and subject to supervision by the National Probation Service. During the custodial period, offenders must be held in the lowest security conditions necessary to manage the safety of their identified risk of escape or absconding, the risk of harm to the public and the risk of any serious disorder. Those are the considerations, not the impact on the victims.

The errors in the case, as identified by the Minister, were that the prison is responsible for managing a case. The prison offender manager should have contacted the victim liaison officer directly to let them know that the move to open conditions was under consideration, but they failed to do so. The senior manager has spoken to the staff at the prison, and a reminder has been sent to all of the staff reminding them to follow the correct procedure. The requirement has been raised with the National Probation Service regional implementation managers to take forward and ensure other prisons follow the correct process.

I will quote from the letter from the Solicitor General dated 21 October 2020.

“The reason for informing victims before the decision is taken, is to ensure that victims are kept updated with developments, so that a move to open conditions does not come as a total shock, and also to ensure the prison is aware of any exclusion zones which the victim has requested. This can help to inform which open prison an offender is moved to. I should like to underline that the Government shares the concerns about offenders who commit very serious crimes, and yet are released automatically at the halfway point in their sentence. We have taken action to address this through legislation we introduced earlier this year. We are committed to ensure that serious offenders spend the time in prison that reflects the gravity of their crimes and intend to bring forward proposals to further strengthen the law in this area”—

the Bill that we are all serving on.

So we got an apology, commitments and managers and staff spoken to. It was never going to happen again, and then, lo and behold, two months later, I got a near identical case—case B. The perpetrator was sentenced to nine years on three counts of sexual activity with a child in 2018. The offender was transferred to a category D prison in February 2021—again, two and a half years after the sentence—but the victim was not notified until April, three months after the offender was moved to a category D prison. Again, the victim was signed up to the victim contact scheme, but was not notified until after the transfer had taken place.

Again, I contacted the Minister, and in January 2021 the prison offender manager told the victim liaison officer that the offender had been assessed as suitable for open conditions in October and that an open prison had confirmed they would accept the offender, but the date of transfer had not been finalised. The POM should then have informed the victim liaison officer when the open conditions were considered, not just about the decision. Once the victim liaison officer was notified, the victim should have been notified, but that did not happen. The victim liaison officer asked to be notified when the transfer had taken place, but the prison, whose responsibility this was, failed to inform her. The victim liaison officer became aware themselves only in April when the community offender manager made inquiries about the conditions that the victim would wish to request for temporary release of the prisoner who raped her three times when she was a child.

Something is going horribly wrong. We have a system in which, twice in six months, victims of the most serious crime have been let down by the state. The system that the Minister currently has in place is not working, so how can we make sure that this does not keep on happening again and again? I am one MP and I have had two cases in the past six months, so it concerns me that this is happening all over the country, but survivors would not think to go to their MP to get it raised. The transfer of offenders guilty of serious offences to open conditions after just a quarter of their sentence is deeply wrong. The thought of an offender being back in the community is deeply traumatising for victims who have already been through both the crime and also the ordeal of a trial only comparatively recently. Notification is vital, as should be consultation. However, consultation is not offered and the system for notification is clearly dysfunctional.

As I said to the Minister, I am not sure that my amendment is the correct amendment, but I really need some reassurances to make sure that victims are both notified and consulted. To refer back to the previous clause, how are we meant to know whether an offender is dangerous and a risk unless we actually hear from the people who have been subjected to the horror that that person can wreak?

I congratulate my hon. Friend the Member for Rotherham on tabling amendment 145, which has been crafted with her characteristic care and has won support from colleagues across the House. Contrary to what she might think, I think it is the right amendment. The Opposition fully support the principle behind amendment 145 that victims and survivors deserve to be at the heart of criminal justice and, in this case, to be consulted on decisions made by the Parole Board that affect them. The amendment is a simple one, and I will not detain the Committee by repeating the words of my hon. Friend the Member for Rotherham on the technical aspects of how it would work

I am grateful for the Minister’s comments. I have worked extensively with the Government’s victims team and it is fantastic. The victims code is great, but only if it is implemented. The problem we find is that people are not notified when the offender is coming up for parole consideration, so their rights are not activated because they do not know that that situation is occurring.

I accept his generous offer of meeting the hon. Member for Cheltenham, which I will take up. With that reassurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I have nothing to add.

Amendment 132 agreed to.

Clause 109, as amended, ordered to stand part of the Bill.

Clause 110

Responsibility for setting licence conditions for fixed-term prisoners

Question proposed, That the clause stand part of the Bill.

The House briefing paper on the Bill explains that when a driver receives a driving disqualification alongside a custodial sentence, the court must also impose an extension period to ensure that the disqualification period is not entirely spent during the time the offender is in prison. The explanatory notes explain that clause 115 would change the law so that the length of the extension period reflects a succession of other changes made by the Government to the release points for certain offenders.

The notes refer to changes made by the Terrorist Offenders (Restriction of Early Release) Act 2020, the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020, changes in the Counter-Terrorism and Sentencing Act 2021 and further changes proposed by this Bill. These pieces of legislation all change the point at which an offender is automatically released or becomes eligible to be released if the Parole Board agrees they are no longer a danger to the public. Rather than being at the halfway point of the sentence, that release point will now move to the two-thirds point.

As I explained at some length in the debate on clause 106, the Opposition cannot wholeheartedly support changes to the release point of certain offenders. Not only do the changes make a notoriously complicated sentencing regime even more complicated but they also substantially limit the amount of time an offender spends on licence in the community, significantly increasing their chances of reoffending.

The Opposition do not support the Government’s logic in adapting other pieces of legislation, in this case driving offences, to reflect those changes. For that reason, we are opposed to clauses 115 to 118 and urge the Government to use caution before committing to any further changes that would further complicate an already overcomplicated sentencing system. That said, I do not intend to press the clauses to a vote, but let the record show that we are opposed to the provisions.

As the Minister set out, clause 124 provides legal clarity about what a probation officer or responsible officer can instruct an offender who has been released from custody to do. Specifically, it will give probation officers the legal power to compel offenders serving a community or suspended sentence order to attend supervision appointments. Those appointments can be either for the purpose of ensuring the offender complies with rehabilitative requirements or where there are public protection concerns. If an offender refuses to comply with directions made under clause 124, they can be found to be in breach of their licence conditions and punished accordingly.

On the whole, this is a clause that the Opposition can support. If there is legislative uncertainty about what a probation officer can and cannot do, it is important, for the benefit of probation officers and offenders themselves, that it is ironed out. We accept that. The Opposition also accept the importance of offenders attending the appointments they need to rehabilitate and reform in the community. I have spoken at length about how Labour fully appreciates the importance of time spent in the community when it comes to reforming an offender and reducing the risk of reoffending. We are also keen to support amendments that will make the life of probation officers easier by providing legislative clarity.

However, although we are supportive of clause 124, we have some concerns, which I hope the Minister can respond to today. First, given that failing to attend appointments under the clause could result in an offender being found to be in breach of their licence and possibly recalled to prison, can the Minister set out the procedure that offenders can use to challenge orders made under clause 124?

Secondly, we must also consider the impact that the powers in clause 124 could have on offenders who have learning disabilities or are neurodivergent. As the Prison Reform Trust explains:

“People with learning disabilities can find it particularly difficult to comply with measures such as additional appointments or reporting requirements, and so special attention will need to be given to ensuring they are not unfairly disadvantaged by these provisions.”

In addition to addressing the system for offenders to challenge orders under the clause, will Minister set out what safeguards will exist to ensure that no offender is unfairly disadvantaged by clause 124 due to circumstances beyond their control?

I now turn to clause 125, the effect of which is similar to 124. Clause 124 gives probation officers greater powers to compel offenders to attend appointments in the community, and clause 125 gives probation officers greater powers with regard to curfews. Under current legislation, offenders subject to a community order or suspended sentence order can be subject to a curfew for up to 16 hours a day for a maximum of 12 months. Clause 125 would increase the daily curfew to 20 hours and increase the total period over which curfews can be imposed from one year to two years.

The Government set out in the explanatory notes that this change will increase the punitive weight of a curfew requirement, but also has the potential to support rehabilitation by providing a longer period during which some of the positive effects of curfew could be established. As with clause 124, the Opposition are keen to give our hard-working probation officers the tools, powers and legal clarity they need to do their job properly. We are satisfied that clause 125 is a proportionate means of achieving that goal, particularly as the Government have chosen to retain the maximum number of curfew hours that can be imposed per week.

None the less, as with clause 124, we seek some assurances from the Minister about how these extended powers will be used in practice. As with clause 124, our main concern is about the potential of clause 125 to increase the number of offenders found to be in breach of their licence due to circumstances they cannot control, or because of technical breaches. I will discuss one aspect of this in more detail when we come to amendment 122, but we know that offenders are wrongly accused of breaching their licence conditions, including those relating to curfews, due to electronic tags malfunctioning. What assurances can the Minister give that extending the powers of probation officers in this area will not lead to more offenders accused of being in breach due to malfunctioning tags?

I also repeat my concern in relation to clause 124 about how this power could impact offenders who suffer from learning difficulties or are neurodivergent. What steps will the Minister take to ensure that these offenders are not unfairly disadvantaged by clause 125? Will probation officers be given additional discretionary powers to ensure that these offenders are not punished for a breach that they did not intend to make?

Finally, how does the Minister respond to concerns expressed by the Howard League that allowing probation officers to place strict restrictions on leisure days could prevent people on licence from building the positive social relationships that would help them to desist from crime?

Let us move to clause 126, which, like clause 125, extends the power of probation officers in relation to curfews. As the Government explanatory notes point out, currently, changes to a curfew cannot take place unless they have been authorised by a court. Clause 126 would amend the sentencing code by enabling probation officers to vary a curfew requirement made on a community order or suspended sentence order. Specifically, the clause would allow the probation officer or responsible person to change the curfew requirement in one of two ways: changing the time a curfew starts or ends over the course of 24 hours, or changing the residence of the offender as set out in the order.

The explanatory notes suggest that these additional changes will be beneficial not only for probation officers but for Her Majesty’s Courts and Tribunals Service and offenders:

“This legislative change seeks to reduce the burden on the courts, freeing up time for other matters and saving probation resource by reducing the volumes of papers prepared for court and court visits. There will also be advantages for offenders, allowing for variations where typically there are alterations to work hours or location that make compliance impossible, or where an offender’s curfew residence address needs to be changed in a timely way.”

While the Opposition stand firmly behind any proposal to reduce the horrendous burden currently on our courts, I am somewhat perplexed that the Government’s first thought in this area is to give probation officers the power to vary curfew requirements.

As the Minister will no doubt be aware, the backlog in the Crown court is at record levels, sitting at almost 40,000 cases before the pandemic even began. As we said before, victims of rape and other serious offences face a wait of up to four years for their day in court. While it is true that the backlog has been exacerbated by the pandemic, it was created by the Conservatives closing half of all courts in England and Wales between 2010 and 2019, and allowing 27,000 fewer sitting days than in 2016. If the Government were serious about reducing the burden on our courts, they would have adopted Labour’s package of emergency measures during the pandemic, including mass testing in courts, the extension of Nightingale courts and reduced juries until restrictions are lifted, but they did not, and the result is the catastrophe we see today.

Of course, there was also the North Liverpool community justice centre, which I think the Minister may have referred to, which extended the problem-solving court technique to all kinds of offences, not only specifically drug or alcohol offences, domestic violence or mental health issues, and it was very successful.

Indeed, that was the case. We have so much to learn from the best practice around the country, but also from what happened before this Government varied those types of courts when they came to power in 2010.

In total, the Government have committed to piloting five problem-solving courts, targeted at repeat offenders who would otherwise have been sent to custody. The Bill builds on those proposals by laying the legislative framework for the pilots to take place—specifically, clause 128 introduces schedule 13, which will give problem-solving courts the power to periodically review community and suspended sentence orders, and to commit an offender to custody for a breach. The pilot of problem-solving courts is welcome.

The evidence is clear that problem-solving courts have proven hugely effective—for example, in restoring confidence in the criminal justice system among marginal communities. As the Government’s own response to the Lammy review set out:

“Trusted figures in the CJS were described as those who had taken the time to get to know an individual, their background and specific needs and vulnerabilities.”

Moreover, if rolled out nationally, the pilot of problem-solving courts would also play an important role in reducing the huge burden on our courts system, while ensuring short custodial sentences are used only if completely necessary.

Although the Opposition support the powers in clause 128, we have some concerns, and I would be grateful if the Minister responded to them this afternoon—sorry, this morning. It is still morning!

First, as Women in Prison points out in its helpful briefing:

“In order to be considered for a problem-solving court approach, a person must first enter an admission of guilt for the alleged offence.”

The briefing goes on to note that the review conducted by my right hon. Friend the Member for Tottenham (Mr Lammy) found:

“Black, Asian and minority ethnic people are more likely to plead not guilty to alleged offences. We know that experience of racism and lack of trust in the criminal justice system prevents people from feeling that they will be treated fairly if they plead guilty.”

I know that we have already raised this issue in debate, but therein lies a difficulty that the Government will have to contend with as they pursue their pilot of problem-solving courts. As the Prison Reform Trust explains, while, on one hand, problem-solving courts have been useful at restoring confidence in the criminal justice system for those in marginalised communities, for them to be wholly successful,

“pilots must work with people who enter not guilty pleas, and on added measures that are likely to increase confidence in the process.”

I know the Minister said that the Government would do what they could to overcome that problem, but what that is, or could be, is still far from clear. Can he be more specific by explaining what steps the Government are taking on the issue of not guilty pleas and to avoid exacerbating the disproportionality that already exists for black, Asian and minority ethnic people in the criminal justice system?

Secondly, if problem-solving courts have already shown themselves to be effective in providing rehabilitative alternatives to custody, why have the Government chosen to pursue such a limited pilot rather than a larger national roll-out? Thirdly, what will the Government do to resource properly the probation and other services that work with offenders who are dealt with through problem-solving courts? The Minister knows, as I do, that resources are thin. If they are not there, the system will fail. Finally, will he report back to Parliament on the success rate of the pilots, and if so, what would the Government look for before they could commit to a national roll-out?

I will be very brief on clause 129. While clause 128 and schedule 13 provide the legislative foundation for the pilot of problem-solving courts, clause 129 and schedule 14 would enable the courts involved in the pilot to impose drug-testing requirements as part of a community sentence or a suspended sentence order. As the House briefing sets out, a court would be able to impose drug-testing requirements only where the two following conditions are met: substance misuse has contributed to the offence to which the relevant order related, or is likely to contribute towards further offending behaviour; and the Secretary of State has notified the court that arrangements to implement drug-testing requirements are available in the offender’s local area. Taken hand in hand with clause 128, the Opposition are happy to support clause 129.