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Criminal Justice and Immigration Bill

Volume 699: debated on Tuesday 26 February 2008

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]

79: After Clause 9, insert the following new Clause—

“Pre-sentence reports and other requirements for persons under the age of 18

(1) The Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In section 156 (pre-sentence reports and other requirements), after subsection (8) insert—

“(9) All provisions of this section are subject to the requirements of section 156A below in relation to offenders aged under 18.”

(3) After section 156 insert—

“156A Pre-sentence reports and other requirements for persons aged under 18 before a custodial sentence may be imposed

(1) A court shall not pass a sentence of custody on a person under the age of 18, unless it has obtained and considered a pre-sentence report which includes information from the relevant local authority stating—

(a) the circumstances relating to the offender and the offence or offences of which the offender has been convicted,(b) whether the offender appears to be a child in need as set out in section 17 of the Children Act 1989 and if so details of the offender’s needs as assessed by the local authority, and(c) the services the local authority has provided to meet the needs of the child or young person.(2) The court may require the attendance at court of a senior official of the relevant local authority or any other local authority in order to determine what further services may be provided which may prevent or avoid the need for a custodial sentence.

(3) The court may not pass a custodial sentence unless it is satisfied—

(a) if the offender is a child in need, that services have been provided by the local authority which were appropriate or sufficient to meet the child’s needs, and(b) that the provision of further, or any, services by the local authority would not prevent or avoid the need for a custodial sentence,unless a custodial sentence is necessary to protect the public from an imminent and demonstrable risk of serious physical or mental harm.

(4) All local authorities must submit annual reports to the relevant Secretaries of State setting out the numbers and circumstances of all children who have been sentenced to custody from that local authority area.

(5) For the purposes of this section “relevant local authority” means the local authority in which the offender was habitually resident at the time of committing the offence or offences in relation to which sentencing is being considered by the court.

(6) In the event that the offender is no longer resident in that local authority area at the time of sentencing, or if there is any doubt as to the relevant local authority, the court may of its own volition or upon the request of any party determine which is the relevant local authority.””

The noble Lord said: This amendment is proposed by the Standing Committee on Justice, a coalition of all the principal charities that work with children. It seeks to introduce a requirement for local authorities and the courts to consider appropriate local authority provision to meet the needs of an offender under the age of 18, when custody is being considered. Local authorities are, as the Committee will be aware, under a statutory duty to safeguard and promote the welfare of children in need. Is there a need for the court to determine whether further service provision by a local authority could avoid having to send into custody a child under the age of 18, or is it just lip service to say that custody should be the last resort for children, as required by the United Nations Convention on the Rights of the Child?

It is interesting and instructive to illustrate the problem by consideration of looked-after children. A project was carried out by the National Children’s Bureau which produced a report entitled Tell Them Not To Forget About Us. In that report the bureau found that looked-after children who enter prison often miss out and have missed out on the support and care planning services to which they are entitled. As a result of not having those services, their long-term outcomes are very poor. The National Children’s Bureau was commissioned by the Department for Education and Skills to look at the care planning system for looked-after children in prison. Di Hart, the principal officer of the bureau’s children in public care unit, and author of the report to which I have referred, concluded:

“The picture that emerged was one of fragmented planning and poor outcomes”.

Young people often feel abandoned by the social workers on whom they have come to rely and practitioners are confused about their respective responsibilities.

In the report of the National Children’s Bureau, there is a foreword, written by Maria Eagle, who is the Parliamentary Under-Secretary of State for children and families, and Rob Morgan, who is the chair of the Youth Justice Board. The foreword says:

“The Government is committed to supporting effective multi-agency working to help support all children and young people, and to improve the outcomes they achieve in life. It is crucial that children do not fall between agencies, and that each agency works as effectively as it can with the others involved in that child’s life. That means getting the right systems in place to facilitate this, and not to hinder it”.

The foreword continues:

“For the small number of looked after young people and care-leavers who are sentenced to custody, it is particularly important that the local authority children’s services fit seamlessly with the way the youth justice system operates”.

In that foreword there is recognition of the problem that this amendment seeks to address. It is important to consider the looked-after children because 46 per cent of children in prison are or have been in care. Although they are entitled to ongoing social work support when in prison, there are few systems to ensure that they receive the help that they need to plan effectively for release.

With that introduction, I take Members of the Committee to Amendment No. 79 and to the proposals that we have included for a new Section 156A of the Criminal Justice Act 2003.

The new section states:

“A court shall not pass a sentence of custody on a person under the age of 18, unless it has obtained and considered a pre-sentence report which includes information from the relevant local authority stating … the circumstances relating to the offender and the offence … whether the offender appears to be a child in need … details of the offender’s needs as assessed by the local authority, and … the services the local authority has provided”.

Provision is made for the,

“attendance at court of a senior official”,

to assist the court, and—this is the critical part—the,

“court may not pass a custodial sentence”—

on a child under 18—

“unless it is satisfied … if the offender is a child in need, that services have been provided by the local authority which were appropriate or sufficient … and … that the provision of further, or any, services by the local authority would not prevent or avoid the need for a custodial sentence”.

That puts to the very forefront the question of whether a child under the age of 18 has received the necessary support from the local authority to which the child is entitled. A child on the brink of being sent into custody must surely be “a child in need”.

I draw the Committee’s attention to the caveat that a custodial sentence must not be passed without a report unless it is necessary to protect the public from an imminent and demonstrable risk of serious physical or mental harm, so the proposal would not apply when it is obvious to the court that it is necessary to protect the public immediately. There are other aspects to the amendment, which has been put forward by the organisation that is concerned with all the charities involving children. In my respectful submission, it has approached the problem in the right way and in accordance with the international covenant. I beg to move.

We, too, have an amendment in this group. If I say that it is more straightforward than that tabled by the noble Lord, Lord Thomas, I am in no way disparaging his contribution, which is extremely important. Our amendment underlines the importance of a pre-sentence report being in writing. It would ensure that the court considers the individual circumstances of the offender, such as his home situation, health, education and the history—if there is one—of his offending behaviour.

The JCHR emphasised the need to ensure that those requirements are clearly set out and that conclusions drawn from them are closely tailored to the individual circumstances of the offender. A report in writing would mean that a clear and detailed record could be kept on the child’s file further to inform any later appearance before the court. I confess that I had assumed that these pre-sentence reports would always be in writing, but I understand that oral reports can be compiled quickly in the courthouse and given in court on the same day by the YOT officer. That is an exceedingly unattractive and ill advised approach, which is why we tabled the amendment.

I warmly support the amendment moved by the noble Lord, Lord Thomas of Gresford, and I associate myself with the amendment spoken to and argued for incisively by the noble Lord, Lord Kingsland. We should be grateful to the noble Lord, Lord Thomas, for having brought to the Committee’s attention the considered view of the National Children’s Bureau both in terms of the scope of organisations that the bureau represents and the experience of those organisations in their front-line work.

It is an extremely grave step to consider a custodial sentence for a child, and never lightly to be undertaken. At the same time, however, one must remember the immense pressures under which sentencers sometimes operate. As the most reverend Primate the Archbishop of Canterbury has again reminded us today in some sensible and sane observations, we must be wary lest we are moving into a culture of studied hostility towards the young which is actually provoking anxiety among them, resulting in anti-social behaviour.

In this context, with much of the media baying for “tough” lines, one must not underestimate the psychological situation in which sentencers sometimes find themselves. The tough line is sometimes to resist popular pressure and do what is necessary. It may not be popular, but it may be what is right and make sense in terms of the individual, their rehabilitation, the interests of society and the avoidance of further cost through further offending.

However, I am the first to agree that a custodial sentence will sometimes be necessary to protect the public. As I argued on an earlier amendment, whenever this is necessary it should always be in tailor-made, specific accommodation established for the young. The evidence is repeatedly there, month after month, of how things go wrong for the young in prisons. They are in situations where the culture is totally wrong and does not concentrate on the child as a child—however terrible what the child may have done—or on the need to try to enable them to rebuild a sane, balanced life. Suicide, self-mutilation and everything else that goes on is all appalling evidence.

In this context, therefore, to call for detailed consideration and ask for those who know most about the child and their record to be present, and to seriously record in writing what their views, experiences and analysis amount to, is altogether appropriate and relevant. Both of these amendments are self-evidently sensible. They would strengthen the purposes of the Bill and, from that standpoint, I am glad to support them.

The most interesting thing that the noble Lord, Lord Thomas of Gresford, said was that 41 per cent—if I remember rightly—of children sent to be locked up have been in care. Does that figure not say something quite enormous: that our care system is seriously wrong and not functioning properly? Or am I jumping from the particular to the general, or whichever way around it is, without any great degree of logical thought? However, on first sight, those numbers strike me as extremely disturbing. The care system itself must therefore now be carefully looked into to see what improvements can be made.

It is also extremely odd that this is not already in practice. It is blindingly obvious to any person of humanity or common sense that sending children to prison or a lock-up should automatically be the last resort. It is incomprehensible in today’s world that there is no proper written report on every child before that child is sent to prison. Of course I agree with the noble Lord, Lord Judd, that some children are thoroughly nasty, very dangerous and particularly repellent, and should be locked up. However, that equally induces a responsibility on society that the care standard, not only from the child’s point of view but from society’s, should be the best that we can possibly organise. The more efficient we are and the better we are at organising care for young criminal offenders, the more they will not go on, as so many of the bad ones do, to a complete life of crime. That is what we should be aiming for. Of course it is impossible to succeed, but at least I hope that we can make some dent in it. The amendments go a tiny way to making a pinprick in this thing, so I support them wholeheartedly.

I particularly support the amendment of the noble Lord, Lord Kingsland. If it is necessary to send a child to secure accommodation or a young person under 18 to prison, that, as the Government have already said, is a measure of last resort. Consequently, it is particularly important that there should be a considered report on this child or young person, which has been written by someone who has had time to investigate the background. We know that among those who commit serious offences are those who are truly bad, as the noble Earl, Lord Onslow, said, but also those who have an appalling background who could be helped in some way, even if it is necessary to go to prison. Indeed, the background may have some effect on what the prison sentence may be. Consequently, the idea that it is possible to send a young person to prison on a report that is provided on the day of his being found guilty but is not considered is a blot on our administration of justice.

I, too, support the amendments in the names of the noble Lords, Lord Thomas and Lord Kingsland. I am very glad that they are there because they are complementary. I am also very glad that we have an opportunity to discuss the briefing, which I am glad the noble Lord, Lord Judd, paid particular attention to, which many of us received from the Standing Committee for Youth Justice. It represents the voices of professionals, and we should all listen to it.

The noble Earl, Lord Onslow, mentioned care, which links again—I have paid attention to this in the past—to the Children and Young Persons Bill, which has been going through in a parallel time. I am particularly keen on the provisions that would be made by the amendment to require local authorities to produce an overview from the people responsible for the care of a child to aid those people who have to take the sentencing step. I was, like the Standing Committee for Youth Justice, disturbed to see the comments about this proposal when it was made in the other place. The Minister there said that it would duplicate existing safeguards and provisions in respect of information about the young offender and would impose additional bureaucracy and cost, particularly on local authorities, for little extra gain.

From the very beginning of our discussions on the youth justice part of the Bill, people on all sides of the House have emphasised that the focus must be on the child. It seems to me that the Minister did not focus on the child so much as on the bureaucrats and the authority. You cannot have too many safeguards to make certain that the best interests of the child are preserved. I am, frankly, astonished that the Minister should think that that was a line to take.

When looking at the responsibility of government in this, I am surprised that the Minister there said that the Bill would place additional duties and requirements on people. Of course, we should put the requirements to deal with the child at the very top of our priorities, not at the bottom of the list. Therefore, I hope very much that these amendments, which are designed to do just that and to make certain that the best interests of the child are not only maintained but recorded so that they can be followed through by others and not just be a one-stop shop when someone appears in court, are taken very seriously.

Lastly, I draw to the Minister’s attention the comments of the Standing Committee for Youth Justice, which says that there did not appear to be much strategic thinking behind what the Minister there was saying in his comments. There is not much strategy in this Bill, but if there is one bit that we can rescue, I hope that it is a strategy for better dealing with our children when they come into the hands of the law.

I, too, most wholeheartedly support this amendment in the name of my noble friend Lord Thomas, requiring as it does that, before a court imposes a sentence of custody on a child, all alternative local authority service provision has been considered with a view to avoiding custody whenever possible. Not only is this necessary and desirable in terms of the individual needs and welfare of children, it is fundamentally humane. It also clarifies what is available to the court.

Pre-sentence reports are, or should be, a vital tool in the court’s decision-making process. The requirements of this amendment can be only in the best interests of the child as well as of society, as has already been pointed out. I also wholeheartedly support the subsequent amendment in the name of the noble Lord, Lord Kingsland, requiring that these reports should be in writing. Nothing can be worse than an off the top of the head, last minute, verbal report, which tells you nothing of import about a child whose needs are bound to be great and are bound to be complex.

As I pointed out at Second Reading, while the Government pay lip service to all manner of good intentions where sentencing is concerned—for example, using custody only as a very last resort and for as short a time as possible; the welfare of the child being paramount; and supporting the preference for community-based penalties wherever possible—the reality is quite at odds with those sentiments. While overall crime is dropping, the number of children being sent into custody continues to rise. Child prisons are by definition punishment rather than welfare based. Here, as well as the YOIs, there are STCs, which take children as young as 12 years-old. The budgets for the providers of the vital alternatives for young people in the community are being cut, thus limiting available resources.

Under the amendment, local authorities are required to consider all available alternatives. That is the way to meet the obligations, as the noble Lord, Lord Ramsbotham, has just told us, of putting the welfare of the child first, of finding alternatives to custody except as a last resort and of the Government making available resources for appropriate provision.

It is by now well known that children for whom custody is being considered are the most needy, most vulnerable and most damaged. Eighty per cent of the youngest children reoffend, the costs of custody are huge, and if their needs are appropriately met—for example, 60 per cent of boys have serious mental health problems—we will have a safer society, and less socially and mentally disabled children. We will also, incidentally, have complied with our obligations under Articles 37(b) and 40.4 of the UNCRC and Rule 19.1 of the Bejing rules, which would be no bad thing. It always defeats me how we somehow manage to sidestep, avoid or ignore these rules to which we should adhere and with which we should comply.

The noble Lord, Lord Ramsbotham, referred to local authorities, which are always strapped for cash. The reality can be that they are ready to let children go to custody where there is central funding and a ready facility is apparently there. The issue is not only bureaucracy, as the noble Lord, Lord Ramsbotham, pointed out, it is also often cash. Local authorities lack a financial incentive; for example, individual support orders are not nearly as popular as ASBOs. Even, very sadly, the YOTs have become quite distanced from the work of children’s services, something which was commented on in a chief inspector’s report on safeguarding in 2002. Pre-sentence reports are vital. I urge the Government to look carefully at these important amendments carefully.

I well appreciate and respect the principles and the desires underlying Amendments Nos. 79 and 80. I certainly bow to the view of the noble and learned Baroness, Lady Butler-Sloss, that the vast majority of courts have over the years approached these issues in this way and sentences have spelt out the very things in Amendment No. 79. It may be that the noble Lord, Lord Ramsbotham, is placing a rather narrow gloss on the words of the Minister in the Standing Committee, but I have not read his speech and I may be wrong.

If that Minister was suggesting for a moment that financial economies were more important than the future of a child, I would wholeheartedly agree with everything that the noble Lord, Lord Ramsbotham, said. I suspect, however, that that is not what was meant. In other words, the Minister was applying his mind here to the question of the local authority’s involvement. Was it necessary for the local authority to be represented in court when the probation officer, presumably, would have already consulted the local authority and would be able to speak for it in an authoritative way? If it was the latter, the Minister should be absolved from what clearly otherwise would be a very narrow and improper analysis of the situation.

I wholeheartedly agree with the noble and learned Baroness, Lady Butler-Sloss, that Amendment No. 80 is to be preferred on the whole to Amendment No. 79. On Amendment No. 79, quite apart from the specific and possibly unnecessary reference, to the local authority as such, it seems to me that that can be dealt with to a large extent by administrative precept. I suspect that it probably is dealt with already by administrative precept in that regard. All that one needs is in Amendment No. 80. Very few courts would ever proceed to sentencing a person under the age of 18 to custody without a written report. Sometimes, reports need not be written, but, almost invariably, the judge would ask the resident probation officer whether he or she would be so kind as to interview a person in circumstances where the learned judge very probably had already made up his or her mind not to exercise the assumption of custody in that case. I very much welcome Amendment No. 80 for the reasons that I have articulated.

I have a lot of sympathy with the amendment moved by the noble Lord, Lord Thomas, and I am in complete agreement with that tabled by my noble friend on the Front Bench. I will listen with care to what the Government say about the detail of the amendment of the noble Lord, Lord Thomas. It obviously makes good sense, but there may be administrative reasons which ought properly to be taken into account on some of the detailed provisions.

On the amendment tabled by my noble friend, this seems to be an open and shut case. If you are dealing with whether to put a child under the age of 18 into custody, you are dealing with whether to impose on him a step that will probably have a watershed effect in his subsequent life. Although I agree absolutely with what has just been said by the noble Lord, Lord Elystan-Morgan, that there may be occasions when it will be possible properly to have a pre-sentence report given orally, it is a necessary safeguard to require that such reports are given in writing. Much will depend on the way in which the report is expressed. If it has to be in writing, one can be that much more sure that it will be carefully considered with an eye to the possible consequences of this or that nuance than if it is delivered orally. I therefore hope that the Government will support my noble friend’s amendment.

I should like to support both of these amendments. I was astounded to learn that children can be sent to prison without a written report and I wonder whether in his reply the Minister could confirm that that does happen. Most noble Lords would find it difficult to believe. The amendment of the noble Lord, Lord Thomas of Gresford, opens up some of the contradictions that lie at the heart of the Government’s policy. No doubt noble Lords will be aware that in most western European countries, and in England and Wales until the recent past, children in trouble are dealt with by the same authorities as other children with problems. Those are the local authorities, which have responsibility for all services for children.

The Government recently reformed the systems for dealing with children at the local level and have introduced what appear to be considerable improvements based on the ideas behind Every Child Matters and Safeguarding Children. This is where the problems start. Once the actions of a child become of interest to the police, children are moved from mainstream services for children to the specialist world of youth offending teams, the courts and the Youth Justice Board. This structure leads to major dysfunction because it enables local services in the area where the child and the family live, and where the impact of the child’s behaviour is felt, to opt out. The child’s needs and the plan for the child become someone else’s responsibility, and as the noble Baroness, Lady Linklater, pointed out, for a hard-pressed local authority that can be quite welcome. It can also be greatly to the authority’s financial advantage to shift the spending responsibility to the Youth Justice Board’s custody budget. This is, however, a highly undesirable and ineffective outcome because all the research shows us that the more a child can be kept in a local situation and within mainstream services, the more the aim of the youth justice system to reduce reoffending is likely to be met.

The amendment of the noble Lord, Lord Thomas, could make an important contribution to shifting the balance of responsibility back to the local area where the child lives and towards a youth justice system that might begin to use the £280 million spent every year on custody on a more productive outcome.

I strongly support both amendments. The amendment of the noble Lord, Lord Thomas of Gresford, would be particularly effective after Clause 9 because it amplifies the importance of dealing with offenders under the age of 18. It is that which matters particularly to those of us who are also working on the Children and Young Persons Bill. We have heard about the proportion of those aged under 18 in custody who go on to reoffend, and it is absolutely appalling. But we also know that the Children and Young Persons Bill has been brought forward by the Government in response to a high degree of input and information from people like my noble friend Lord Listowel, who has been lobbying for a long time to draw attention to just how badly we have failed with this group of children. It is thoroughly to the Government’s credit that they are doing their best to pass a Bill that pays far greater attention to the needs of these children.

For that reason, spelling out all the issues that need to be taken into account in the way suggested by the noble Lord, Lord Thomas of Gresford, combined with the amendment tabled by the noble Lord, Lord Kingsland, is to be welcomed. The proposal recalls for me a time when I sat as a chairman of a juvenile court where we certainly did take account not just of probation reports, but social services reports and reports from the education authority as well. Together, they formed the basis on which we would come to a conclusion. When dealing with children and young people, it is sensible for us as a country and as a community to do our best to rehabilitate them in the way suggested particularly in the Children and Young Persons Bill. I hope that the Minister will give real consideration to these two amendments.

I want to speak briefly in support of these amendments, partly from my experience as a local councillor. You become, in effect, a corporate parent for all of the children in local authority care. If one of those children was to die in your care, of course you would consider that you had failed substantially as a corporate parent, but I am not sure that the same feelings arise when a child in the care of a councillor as a corporate parent is sent to prison. However, in fact it is the same sort of substantial failure. In particular, the statutory requirement for a local authority to list the services it has provided to meet the needs of the child or young person would be a tool for corporate parents. I must say that as a councillor you are one step removed from these children. Obviously you cannot have the same level of involvement as a real parent would have, and you need to know that all the policies have been implemented and the paper trail is in place in order to ensure that failure is a remote possibility. Of course, excellent authorities do have this sort of thing in place, but not all authorities are excellent. Quite apart from all the reasons so powerfully put by other noble Lords, this provision would be an additional tool for local authorities to use.

It seems a long time since we considered a number of amendments that run very consistently with our debate this afternoon about the way young people are dealt with in the criminal justice system. I think it is fair to say that in our previous discussions we did refer to the performance of youth offending teams and local authorities, so in a sense the amendment moved by the noble Lord, Lord Thomas, in particular helpfully brings us back to this important question. I am well aware of the very poor outcomes for looked-after children. The noble Lord will recall that I took through the House the legislation on children leaving care which was introduced because of worries about the gap between young children leaving care and growing into adulthood and their falling through the net of further support. I was aware of the poor outcomes for many of these young people.

I strongly endorse the need for effective multi-agency working. I say to the noble Lord, Lord Ramsbotham, that in arguing against the amendment, my colleague in another place was not referring to the needs of bureaucracies or to finance issues; he was concerned—as the noble Lord, Lord Elystan-Morgan, suggested—to ensure that there are clear lines of accountability and responsibility in what local authorities do, and concerned that if the amendment were accepted, the court’s role may well have an impact on that.

I was interested in the comments of the noble Baroness, Lady Miller, who referred to excellent authorities and to not all local authorities being excellent. She suggested that the intervention of the courts as the amendment proposes may help to improve standards. The Government believe that the duties imposed by the existing legislation are satisfactory and that we need to focus our attention on how we can generally improve the performance of both youth offending teams and local authorities. There is no doubt, or argument between us, about that.

Section 156 of the Criminal Justice Act 2003 already requires the court to consider a pre-sentence report before giving a custodial sentence. It is undoubtedly important that the courts possess the fullest information in order to make their decisions and, as I said, to ensure that local authorities are discharging their responsibilities in accordance with their statutory duties. The pre-sentence report already covers most of the issues that the new clause seeks to introduce. I am concerned whether the Bill or the courts are the right way of holding local authorities to account for their actions in relation to vulnerable young people.

It is critical that the courts should have thorough assessments of young people on which they can make proper and reasonable sentencing decisions. That is the underlying purpose of Section 156 of the Criminal Justice Act 2003, which provides that the court must consider a pre-sentence report if it is to impose a community order or custodial sentence. The content of the pre-sentence report is therefore vital. The information to be contained in such reports is set out in the National Standards for Youth Justice Services, which require youth offending teams to produce a thorough assessment of the young person. The pre-sentence report is supported by a common assessment profile of the young person, a comprehensive document which covers all the information that is set out in the new clause and more, including the offender’s welfare background. By implication, it would need to include information on the level of engagement with local social services, what services have been used and any assessment of future need for local authority services.

The right approach is to provide practitioners with the guidance set out by the Youth Justice Board. The guidance can remain flexible, be amended to reflect changes and be kept up to date. The national standards are currently being revised, and I can assure the Committee that we will highlight the need to ensure that welfare issues are included in the pre-sentence report process, that appropriate information is put before the court and that those requirements are established in national standards.

The current national standards are relevant to our debate. Pre-sentence reports must be prepared in writing and copied to the young person, to their parents or guardian and to the prosecutor. They must include an analysis of the offence; an assessment of the young person; an assessment of risk to the community, including risk of reoffending and harm; and a recommendation on sentencing. A young person is assessed by means of a standard assessment tool, the information in which includes interviews with the young person, parents or guardian; existing reports, including any previous assessment; a statement of education needs; and any information relevant to offending including contact with police or health and children’s services. It must take into account any child protection plan, pastoral support plan, individual education plan, care plan, children in need assessment, pathway plan or any other plans. It is then the responsibility of the youth offending team to obtain all the relevant information and to engage with other local authority services in establishing the young person’s needs and ascertaining the best and most appropriate intervention.

It might be interesting to mention the joint inspection of the YOTs. The annual report concluded that there were considerable strengths in current practice. In almost all pre-sentence reports the young people were interviewed at least once, in most cases with their parents or carers, and almost all reports included a clear proposal commensurate with the seriousness of the offence. However, the report also identified certain areas for improvement. For instance: some reports were not based on the assessment tool; safeguarding issues were identified in only 75 per cent of reports; and only 61 per cent of the reports paid attention to vulnerability. I make no apology for highlighting some of the weaknesses identified in the annual report. I am seeking to illustrate that there is a process of inspection, review and monitoring and that we expect youth offending teams to take note and make improvements to their services.

The same applies to local authorities. Over the years there have been many instances where social services have not provided the right quality of service—I remember making a Statement to this House in relation to Victoria Climbié. However, changes have been made. We have a new approach and strong accountability mechanism that includes an ability to intervene. Some years ago Birmingham, my own local authority, performed very poorly in social services and had to go into special measures. The result of the intervention was that Birmingham improved its overall performance and came out of those measures.

I am not going to say that everything is perfect and I understand that the quality of the local authorities’ work can sometimes frustrate the courts and have a negative impact on the young people we are discussing. The best way of approaching the issue is to say that alongside the requirement in the reports prepared by the youth offending teams there should be a performance-management regime, a clear expectation of standards and a clear intervention when the authorities or youth offending teams fail to produce the goods. That is the best way forward.

I return to the question of court reports in writing.

As the Minister embarks on the second limb of his argument, will he take into account that he has told us of a large number of very proper inquiries and considerations, the results of which have to be recorded in writing? If that is so, why on earth cannot those results, encapsulated as they will be in a pre-sentence report, be put into writing similarly? What will be lost?

I was going to come to that point. I have said that the Youth Justice Board national standards already require pre-sentence reports to be in writing. Section 159 of the Criminal Justice Act 2003 also requires that copies of the pre-sentence reports are made available to the offender, to the offender’s parent or guardian if they are under 18 years old, and to the prosecutor. There is an exception, which is if the pre-sentence report is made orally to the court. For young people, that will be where the court decides it can deal with a case immediately rather than adjourn to obtain the report in writing.

I know noble Lords have expressed concern about that, but the provision of an oral report enables the court to allow a young person’s case to be dealt with properly without the need to adjourn for a full report. I have been advised that the offences concerned will be minor. The example I have been given is of a shoplifting offence of a low-value item with no aggravating circumstances, such as drug abuse or minor criminal damage, and the youth offending team is content that a full report is not required and an oral report is appropriate.

Forgive me for interrupting. Does that mean that the list the Minister has just read out is in relation to offences where there is no likelihood that the young person would go to prison? We are all concerned about offences where they will go to prison. If we are absolutely certain that the Minister is saying that they will not, then many people in this House, if I may so speak, would be very relieved.

I was coming to that point. Paragraph 4.1 of the national standards says that the assessment tool, known as Asset,

“must be completed for all young people subject to … custodial sentences”.

The answer to the noble and learned Baroness is yes, so far as I understand. I will undertake to double-check this and write to noble Lords, but my understanding is that what she has said is right. If there were a question of a custodial sentence, a written report would have to be made.

I am most grateful to all noble Lords who have taken part in this debate. I take on board what the noble Lord, Lord Judd, said; we must avoid demonising children and young people. The noble Baroness, Lady Butler-Sloss, said that some children are bad and others have appalling backgrounds. I am not really a believer in original sin—particularly this afternoon, when I have become a grandfather for the sixth time. I do not think it would be appropriate to take that position.

The noble Lord, Lord Elystan-Morgan, and I come from a background and a history where oral reports to the court were frequent, and they have not stopped. It is only a matter of two weeks since I was asked by a judge whether I thought an oral report would be enough in a very serious case. In fact a written report was required, and that was for someone under the age of 18.

The noble Baronesses, Lady Linklater and Lady Stern, have referred to the temptation for local authorities to shift the financial burden from the local authority to the Youth Justice Board’s budget. It is important that the court should bear that in mind when it is considering whether a young person should be sent to prison. We are concerned not about what a probation officer can offer but about what services provided by the local authority have been, or could be, used to avoid that final determination by the court.

If your Lordships look more closely at our amendment, you will see that we are not suggesting that the local authority should itself be under a duty to provide a report to the court but merely that the pre-sentence report includes information from the relevant local authority. In other words, the youth offending team that is putting the pre-sentence report together should have a paragraph or more in that report that outlines the local authority’s attitude to the individual child or young person. That is really what we are concerned with; not the provision of more reports, but that the youth offending team should have that very much in mind. Although we have heard of the guidelines and the assessment tools, which seem admirable in themselves and which have been laid down for youth offending teams to utilise, the Minister has demonstrated that, according to the annual report, there are failures in the provision of the necessary information.

I am grateful to the noble Lord for letting me intervene, and I congratulate him on the birth of his sixth grandchild, which we all rejoice at. I mentioned those failures deliberately to show that I have not come to your Lordships’ House to argue this point from complacency. I accept that weaknesses have been identified that need to be improved. My argument is that we have a mechanism to monitor, judge and then make improvements.

My argument is that that mechanism is not working at the moment. I am not here to criticise local authorities or to ask the court to discipline them for the non-provision of services, nor to argue that youth offending teams should be disciplined for failing to follow the mechanisms, the assessment tool, with which they are provided. I argue that the court may not pass a custodial sentence, it will not send the child or young person to prison, unless it is satisfied, on information that has been obtained from the local authority—through the youth offending team, no doubt—that everything that that local authority could have done for the child or young person has been done.

I also support the amendment that has been put forward by the noble Lord, Lord Kingsland, that everything should be in writing. The old way of working—the probation officer going downstairs, having a chat with the individual young person in the cells and then coming back and giving some sort of a report that he has achieved mainly from the young person or possibly from his parents—is simply not good enough. The court requires a wider provision; not just the probation officer’s view but the local authority’s input into what is the most appropriate way of dealing with that offender. While I am glad that there are the mechanisms to which the Minister has referred, the duty on the court must be to ensure that those points have been covered and not to take either an oral report or a written report simply at face value without asking, “What have you done under this section to obtain the local authority’s attitude?”.

As I said, I am grateful to your Lordships. I do not intend to pursue the matter at this stage, but we will certainly come back to it on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80 not moved.]

Clause 10 [Abolition of suspended sentences for summary offences]:

On Question, Whether Clause 10 shall stand part of the Bill?

We now pass from issues special to children and young people to more general questions of sentencing. The remainder of Part 2 contains specific sentencing proposals, some of which were considered in Committee in another place and some of which were introduced quite late in the day inspired by the report of the noble Lord, Lord Carter of Coles. If I were a more cynical person I might suggest that some of these amendments owe a great deal more to the desire to reduce the scale of the prison population than they do to their inherent merits. However, I have no doubt that the Minister will have something to say about that.

The first of these matters concerns the Government’s desire to remove the power of magistrates to impose suspended sentences in summary cases. Clause 10 proposes that suspended sentences could not be ordered for summary offences although the power would remain for indictable and either-way offences. However, if two or more custodial sentences were being considered on the same occasion, one summary and one indictable, and it is intended to impose a suspended sentence for the indictable offence, a suspended sentence could then be imposed for one or more of the summary offences. As I understand it, this is the first time there has ever been a proposal which differentiates so radically in sentencing disposals between summary and either-way matters. Indeed, in many cases the distinction will almost be a distinction without a difference. For example, in matters of criminal damage, whether something is a summary matter or an either-way matter can turn on the financial scale of the cost of the damage.

But the key issue that needs addressing under Clause 10 is this: when one is dealing with a suspended prison sentence, one is dealing with an offence that has passed the custody threshold. This flows from the guidelines of the Sentencing Guidelines Council. At page 24 of the guidance, the Sentencing Guidelines Council sets out the questions that the court should ask itself. First, has the custody threshold been passed? Secondly, if so, is it unavoidable that a custodial sentence be imposed? Thirdly, if so, can that sentence be suspended? So if the court concludes that a custodial sentence should be imposed and if the option of a suspended sentence is removed, as the Government so intend, it is inevitable that the person in the dock will be sent to prison. In my submission, removing the power of magistrates to use suspended sentences for summary offences will actually have the opposite effect to that the Government intend. It will increase the prison population, not reduce it. The suspended sentence provides flexibility that enables the magistrate to provide a sentencing option which will, always assuming that the individual concerned will stick to the terms of the licence, keep him out of prison.

As I understand the Government’s argument from reading the relevant passages in another place, their view is that if the option to issue a suspended sentence were removed, the court would normally impose a community sentence. If that is the Government’s view, it flies in the face of the guidance given by the Sentencing Guidelines Council. So the Opposition believe that Clause 10 is misconceived and will have an effect contrary to the one the Government intend. We believe that the Government should think again.

My attitude to this clause is certainly not condemnatory. However, it is very cautionary. The main issue has already been put most articulately by the noble Lord, Lord Kingsland. But I bear very much in mind what he said rather cynically, and perhaps justifiably so—that this is not wholly unconnected with the fact that our prisons are bursting at the seams. That echoed the words of that most splendid gentleman, the late Lord Allen of Abbeydale, who told me more than once when I was a Minister in the Home Office some 40 years ago that in his experience—he had been in the Prison Commission and in the Home Office for 30 or 40 years—most of the splendid things that had been done by way of criminal law reform had been done for the wrong reasons. I suspect that we still operate under that reality and that very probably all governments, whatever their problems, face much the same situation.

As I am in anecdotal mood, I recount what happened in 1968 in the Home Office when it was discovered, after the Criminal Justice Act 1967 which introduced suspended sentences had run for 12 months—I am not exactly sure of the figures but they must be very near exact—that the number of fines had fallen by some 18,000 in that 12 months. The number of suspended sentences was either 19,000 or 17,000—it was 1,000 one way or the other—and with the greatest possibility of coincidence in the world, there must have been some causal connection between those two factors.

The point that I seek to make is this. You can never be sure how courts will react to these situations, especially when you bear in mind that the courts which will be dealing with these matters day in and day out will mostly be magistrates’ courts. Noble Lords will know far better than I how two magistrates’ courts with adjoining petty sessional divisions and very similar social backgrounds will adopt totally different sentencing policies. Therefore, there is a danger that you will not get what you expect to get and what you wish to get with this clause. Magistrates may well say, “We would like to fine this person but he has no money”. For a number of reasons they may react against the alternative prospect of a community sentence and say, “Very well, my lad, it’s got to be prison in your case”. So although you defend yourself against the danger that the subjects of suspended sentences may breach those sentences and end up in prison, other people will go to prison immediately.

I believe that a suspended sentence for a comparatively minor offence can be very useful. When you look at the escalation over a person’s criminal career, you say to yourself, “What if he had been stopped early on? What might have happened if he had been pulled up with a short suspended sentence for a summary offence?”. The consequences of losing that tool should be taken very much into consideration.

My other point is the one made most elegantly by the noble Lord, Lord Kingsland. That is, it involves some logical gyroscopics to be able to bring about the situation. Before a sentencer determines that a matter is one for custodial sentence, he must determine whether the custodial threshold has been passed and custody is appropriate. Then he has to constitute himself into a parole board and say to himself that the man he decided, one second ago, to send to prison need not serve that sentence after all. Such mental athleticism and gymnastics are not what ordinary people would appreciate as being very sensible.

It is done and I appreciate that, perhaps, in this case, the alternative to doing nothing to what is contained in Clause 10 might well be to issue very sound advice to magistrates’ courts. However, the logical track is still there. You are still inviting them to take that logical track on the basis of an administrative precept, rather than on the basis of legislation. While I have sympathy with the Government, appreciate their motives in this case and wish, indeed, that they would succeed in reducing the prison population, I am very unsure that that will, necessarily, be the case.

I hope I will remember the story of the noble Lord, Lord Elystan-Morgan, about all splendid law reforms having been undertaken for the wrong reasons. The trouble with Clause 10 is that it is not a splendid law reform. It is going to be a rather stupid one, for the reasons that have already been identified in this short debate.

What is the merit of the suspended sentence? It is surely that it enables the gravity of the offence to be marked, but at the same time offers the accused person the opportunity to avoid prison by reforming his behaviour. This is a very good thing for him and for the taxpayer. I cannot see the logic in keeping it as a sentencing tool for indictable offences, yet taking it away from the far more numerous summary-only offences. The point has already been made, but is worth alluding to again, that before a suspended sentence can become a possibility, the sentencing threshold, as defined by the Sentencing Guidelines Council, has to be passed. The consequence, then, will not be a community order sentence; it will be, in the vast majority of cases, an immediate custodial sentence. That renders this a stupid reform, and not one of those splendid ones, albeit that it will be introduced for the wrong reasons.

I must make the following contribution to this debate. This clause says that to reduce the prison population, we must send people to prison. I cannot believe that that makes sense.

I follow what my noble and learned friend Lord Mayhew has just said. The Committee should remember that a suspended sentence, for some people, is a very great punishment indeed. You have been sentenced to prison, but the sentence has been suspended. It is a great disincentive for some people to reoffend. To have a community sentence instead, if the Government think that is what will happen as a result of this clause, is not the same punishment. The public will see that; people know the difference between these things. In my experience, the suspended sentence is enormously effective for some people. Of course, many reoffend and despite a suspended sentence, they will go to prison. I see that, but for many that is not the case and we should not forget that.

In another place, my honourable friend David Heath drew the attention of the Members to the Adult Court Bench Book, which gives advice to magistrates on how to proceed. On page 49 is the heading, “What level of sentencing are you considering?”. The first tier is an absolute or conditional discharge. The second tier is a fine. The third is a community sentence. It is only at the fourth tier that a custodial sentence is referred to, where the offence is so serious that neither a fine alone, nor a community sentence, can be justified. Only after that stage—if the court decides that the first three tiers are not appropriate, and they consider prison to be appropriate—are they to consider whether the sentence should be suspended.

The Government’s premise is that if you abolish suspended sentences of imprisonment, the courts will naturally move to the community sentence, as opposed to the immediate sentence of imprisonment. What is the basis for that? Mr Hanson in another place said:

“It is part of the government’s drive to examine how we can achieve greater use of community sentences”.

He was then asked, in effect, how he could be so sure about that. He said:

“My judgment, and that of the Lord Chancellor and his predecessor my noble Friend Lord Falconer, is that this will result not in up-tariffing to custody but in down-tariffing to more community sentences”.

He invents some new English phrases, but does not really give any reason. He then said:

“I believe it will result in stronger use of community sentences rather than going to automatic custody”.

He later tells the Committee that,

“the judgment of the two Lord Chancellors … and my judgment as the Minister is that it will result in greater use of community sentences, rather than prison places”.—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 20/11/07; col. 332-4.]

How does that follow? The court, before it even considers the suspension of sentence, has gone through what levels of sentence can be considered. It has concluded that it does not want an absolute discharge, a fine, or a community sentence, and that a sentence of imprisonment should be imposed. This clause abolishes the ability of the magistrates or judge to suspend that sentence. The only conclusion one can have is that immediate sentence of imprisonment should and will be imposed.

This has been an interesting debate. I say to the noble Lord, Lord Kingsland, that a number of clauses in the Bill will have, we hope, a positive impact on the prison population. There is no escaping that we have a very serious problem with the prison population. I hope that the provisions in this Bill will commend themselves as worthy in their own right, alongside contributing to an easing of prison population pressures. Generally, noble Lords are always urging me to do this, except when it comes to a particular amendment, when we sometimes take a different view.

The noble Lord, Lord Elystan-Morgan, certainly had wise words of advice for Ministers and those who seek to influence these matters. He reinforced the importance of sentencing guidelines when it comes to the advice available to magistrates in doing their very important work. I want to make it clear that in moving that this clause stands part of the Bill, it is not my intention to criticise the work of magistrates. They do an excellent job. It is more to help give them the appropriate guidance that is required.

These orders were introduced in April 2005. As we have heard from the noble Lord, Lord Kingsland, they enabled a court passing a sentence of imprisonment of less than 12 months to suspend that custodial sentence for a period of between six months and two years. These have been used extensively. In recent months, more than 3,500 per month have been given out by the courts, of which 40 per cent are for summary-only offences. However, at the same time as the rapid increase in the use of suspended sentences, there has been no drop of equivalent magnitude in custodial sentences. The view of the Government is that many of those sentenced to a suspended sentence order would previously have been sentenced to a non-custodial disposal.

The noble Lord, Lord Elystan-Morgan, would say that that is a result of the Elystan-Morgan law of not getting what we expect. But, clearly, to merit a suspended sentence an offence should have reached the custody threshold. We think that as a result of the introduction of the suspended sentence order we have added about 400 places to the prison population, and that number will build up over about a two-year period from now. The reason for that is that those who breach suspended sentences are almost certain to go to prison, whereas breach of community orders has a wide range of consequences which do not necessarily end in custody. Therefore, we are concerned about the way in which the new suspended sentence has been used where we think a community disposal would previously have been deemed appropriate.

From looking at those extra suspended sentences that have been imposed, has the Home Office discovered whether they are people who should be sent to prison across the custody threshold that the noble Lord, Lord Thomas of Gresford, was talking about, or is the evidence that normally they would be community sentences? I am seeking information with an open mind.

It is a fair question. I cannot say that each case has been looked at individually. The concern has come from the figures and from the fact that while the use of the orders has increased, there has not been a consequent decrease in custodial sentences. Therefore, the supposition is that there has been, to use that awful term, up-sentencing—

I apologise, up-tariffing. Noble Lords then would argue about the fact that these offences must have reached the custody threshold, so that if this provision is enacted in future it will lead to up-tariffing. I understand the point that has been raised. I pray in aid first what the Lord Chief Justice said in an interesting speech on 15 November 2007:

“The seriousness of the offence determines whether it crosses what is known as ‘the custody threshold’, but factors personal to the offender can justify the court in passing a non-custodial sentence even where the custodial threshold is crossed. In practice there is quite a wide borderline area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way”.

That is particularly true in the case of magistrates’ courts, which suggests that there is a grey area. It is in that grey area that the greater use of suspended sentences has fallen.

Is the Minister saying that magistrates are not following the book to which I referred and the processes of arriving at a suspended sentence?

I am very hesitant to stand here and criticise the work of magistrates. The noble Lord may draw that conclusion, but I am not going to stand here and criticise magistrates. It would be wholly inappropriate for me to do so. Clearly, there may be some questions about the guidance that is given to them about training.

I refer the noble Lord, Lord Thomas, to his colleague, the noble Lord, Lord Dholakia, who sadly for me is not in his place. He said at Second Reading:

“There is evidence that courts too often pass suspended sentences where they could have passed a community sentence … Let us hope that the Bill will at least limit this damage by prohibiting the passing of suspended sentences for minor summary offences”.—[Official Report, 22/1/08; col. 163.]

So there is an argument for what the Government are seeking to do.

The Sentencing Guidelines Council has already set out very clearly in its guidelines that an offence must reach the custodial threshold before a suspended sentence can be imposed. Yes, I accept that, clearly, the issue of suspended sentences needs to be kept under discussion with the council. I understand that the council plans to review its guidelines on general seriousness and on the new sentences arising from the Criminal Justice Act 2003, so there will be an opportunity to look at suspended sentence issues again in relation to the custodial threshold.

Our view is that it will not lead to further increases in the prison population. I acknowledge that magistrates would prefer to receive further training on the intended use of suspended sentence orders. The Sentencing Guidelines Council has already set out in its guidelines that an offence must reach the custodial threshold before a substantial sentence can be imposed.

Before Report, can we have some serious investigation into the custody threshold? Either it is a criticism of the magistrates, or there has been a sudden surge in crime. We do not know which, and we should not legislate where we do not know what is going on. I see that, perfectly reasonably, the noble Lord is not saying, “I criticise the magistrates”, but something must be wrong if what has happened has happened. Therefore, we need more information on it, and that is what I am badgering for.

I am happy to see what I can provide. I am not guaranteeing that I can provide the hard evidence that the noble Earl requires. Our estimates are that it has led to a net increase in prison population. I am happy to set out in some detail why we think that is. It is a matter of concern. There are indications that the suspended sentence orders are not being used for the original intended purpose. We will come back to that, and I will provide more information, but I hope at this stage that we can allow the clause to stand part of the Bill.

Before we proceed, perhaps I may pick up on what the noble Lord said about not wishing to criticise the magistrates, which I am sure we are all agreed is very sensible. When he gives further thought to this, will he undertake to take into account the briefing that the Magistrates’ Association has sent us, which I expect he has seen? It says:

“We can see no logical or good reason for this proposal … we feel the present situation is an excellent deterrent with the right to impose immediate custody, but suspend it … We believe that research into SSOs made since April 2005 has not been sufficiently robust yet to show that it is SSOs that have, or will have, a significant impact on prison population”.

These are the people at the sharp end, who deal with 95 per cent or 96 per cent of the criminal cases tried each year in this country.

I can understand deeply why the magistrates are saying that. It is trivialising the whole thing to be talking lightly in this way about the threshold and to be talking about community sentences and suspended prison sentences. It shocks me deeply and I hope that it shocks other people. To be sentenced to prison is a major event in most people’s lives. If that sentence is suspended, it is perhaps a great relief, but its meaning remains “sentenced to prison”. For Parliament to be asked to do away with probably one of the most valuable tools at present available to magistrates seems really foolish to me. The Government are making an enormous mistake, which will affect the public locally. When they see it happening, it will enormously trivialise the difference between the two sentences. I really hope that the Government will think again about this.

I want to make one point, to which I unashamedly admit I forgot to refer in my earlier intervention. The Government’s perfectly laudable motive is to diminish the number of persons who are sent to prison on the breach of a suspended sentence. In order to do that, they limit the area in which suspended sentences can be imposed. I suggest that it may well be worth considering this alternative path.

Many people commit offences while they are the subject of suspended sentences, because there is little or no support for their position. As I understand it, the law, as it stands, is that below a certain level—is it still 12 months or is it six months?—no suspended sentence supervision order can be made. That meant that as far as magistrates were concerned there would be no such orders. To change that rule, and to bring the bar down to three months would, I appreciate, involve substantial human resources, which would have to be paid for in money and in human terms. Yet may it not be better to approach the problem along that path, by allowing the system to remain but seeing to it that there is a possibility that fewer breaches will occur? I leave that with the Minister for his consideration.

All of those comments have been helpful, and I will of course study the remarks with interest. However, perhaps I may say to the noble Lord, Lord Elystan-Morgan, that there are issues of resources, priorities and appropriate use of the skills of probation officers. I understand the noble Lord’s point: that an early intervention might be a better preventive approach and that the result of that would be fewer breaches of these orders and, therefore, fewer people going into prison. I suspect that it would be at a heavy cost, and given all of the pressures I am not sure that the answer would be in the affirmative.

I understand why noble Lords are keen to retain the discretion of the magistracy in this area. I have already paid tribute to the work of magistrates. The fact is that we have hit a substantive problem, which has led to a significant increase in the prison population. In general, I think all noble Lords are as concerned as I about the current level of the prison population. We think that this measure will deal with part of the problem. There is evidence—I guarantee to the Committee and to the noble Earl, Lord Onslow, to find what further information I can to justify this response—suggesting that accepting Clause 10 will lead to a lessening of the pressure.

Based on the statistics, it is certainly our supposition that SSOs may have been used—I hesitate to say “inappropriately”, or I will fall into the trap set for me by the noble Lord, Lord Thomas—in the grey area to which the Lord Chief Justice referred. It may be that magistrates might have been over-zealous in using the order. There is really nothing further that I can say to the Committee at this stage on what has been a very good debate.

I have been listening to this debate with great interest and trying to understand where the Government really expect to go. What do the Government expect to happen if a bench of magistrates, or a stipendiary magistrate—now a district judge magistrates’ court—goes correctly through the hoops of the sentencing guidance and gets to the point of saying, “This is not appropriate for a community service order”? I am no criminal lawyer, but I understand that you have to get to that point before ever considering imprisonment. On the assumption, then, that they have gone through the hoops correctly, what does the Minister expect magistrates to do if Clause 10 becomes law?

Forgive me, but perhaps the Minister may have misunderstood my question. If the bench of magistrates has gone correctly through all of the necessary hoops, and with the sentencing guidelines has come to the conclusion—as it has to—that community service will not do, and Clause 10 is the law, what do the Government expect that those magistrates will do? If I may answer the question, they will have to send him to prison.

I am sorry for being so obtuse in responding to the question at first. That is of course correct, although given the flexibility offered by the community sentencing structure one has to hope that it will have a positive impact and that that will happen in fewer cases. I urge the Committee to support Clause 10 on that basis.

If you arrive at the place where you have to send somebody to prison and cannot not send them to prison on a suspended sentence, then the prison population expands and does not decrease. The noble and learned Baroness, Lady Butler-Sloss, put that logic much more clearly than I did. I am trying only to help the Minister understand that that irrefutably logical process seems to be what will happen. If we all wish to reduce the prison population, Clause 10 cannot do it.

I have already referred to the court bench book and to what level of sentencing is being considered. It is necessary to go back to the guidance of the Sentencing Guidelines Council, which says on page 24:

“The crucial difference is that the suspended sentence is a prison sentence and is appropriate only for an offence that passes the custody threshold and for which imprisonment is the only option”.

The relevant questions from the guidance are:

“(a) has the custody threshold been passed? (b) if so, is it unavoidable that a custodial sentence be imposed?”,


“(c) if so, can that sentence be suspended? (sentencers should be clear that they would have imposed a custodial sentence if the power to suspend had not been available)”.

Now, if the Government want to remove,

“if the power to suspend had not been available”,

the answer is that the sentencer must impose a custodial sentence.

But the point is that we are talking about 30,000 magistrates and their individual decisions. Clearly, there will be circumstances in which some of the offenders will end up in custody even without the suspended sentence order. There is no argument about that. Equally, we contend that removing this option will lead to an overall reduction in the numbers. The community sentencing structure allows for flexibility. I come back to the noble Lord’s point; perhaps I may quote the speech by the noble and learned Lord the Lord Chief Justice back to him, as it clearly said that, within the context of the custody threshold, there is a wide borderline area where it is open to the court to choose between sending the offender to prison or dealing with him in some other way. It is not a simple black or white issue, which is why we need to take this action.

With the greatest respect, there is no wide area. Once the hoops have been gone through, the court has effectively foreclosed the discretion that it would otherwise have on non-imprisonment. There is an illogicality in the situation, although I say in fairness to the Minister that it is not Clause 10 that causes the illogicality. The illogicality has been there for some years; it has been there since there was a provision in one statute that stated that you had to determine whether imprisonment was inevitable in all the circumstances and a power from 1967 to suspend a sentence. The noble and learned Baroness, Lady Butler-Sloss, is absolutely right. The situation has already been foreclosed. There is no discretion once that finding is made. Going back on that decision is utterly illogical. Our concern is to see fewer people sent to prison for breach of suspended sentences and I do not mind how logical the ultimate situation will be if it is successful in achieving that end.

For the Lord Chancellor and the Minister to be correct in their belief that there would be more community sentencing, they must presuppose that more magistrates get it wrong in their approach to sentencing than get it right. The Minister has to suppose that more magistrates are giving people suspended sentences than are following the procedures in the correct way—the procedure of the Sentencing Guidelines Council and the procedure in their court bench book.

I hope that the Minister will agree that my opposition to Clause 10 has commanded considerable support in the Committee. The reason why the Government have got themselves into difficulties on this is that they have an ulterior motive for the clause, which is to reduce the prison population. The correct way to approach this clause is to look at it on its merits. The fact is, as many of your Lordships said, that when magistrates approach sentencing matters, their first port of call will be the Sentencing Guidelines Council. On the question of suspended sentences, as many of your Lordships again said, the guidance is about as crystal clear as it could possibly be: once the custodial threshold is passed, unless there is an option for a suspended sentence, the magistrates must imprison.

It is much more likely that the magistrates will be paying attention to the Sentencing Guidelines Council than to a speech by the noble and learned Lord the Lord Chief Justice. In saying that, I in no way wish to disparage his wisdom. Indeed, there are circumstances in which judges in the Crown Court and magistrates, having decided that an offence reaches or passes a custodial threshold, will nevertheless, in very specific circumstances that they will set out in great detail when they sentence, give a community disposition. In my submission, however, those circumstances are rare, particularly as nowadays the Crown Prosecution Service is quick to inform the Attorney-General if it thinks that a judge is undersentencing. The notion that a whole raft of community sentences will replace the removed suspended sentence is a chimera.

Moreover, although the Government have referred to some evidence since 2005 about the likely behaviour of magistrates in the absence of a suspended sentence option, I know that the Minister will agree that the conclusions of those investigations are at best exceedingly tentative.

At a late stage in the Minister’s observations, he urged the Committee to leave the clause in place for the time being. I am wondering what he meant by that. Did he mean between now and Report?

I was responding to the request of the noble Earl, Lord Onslow, for further information. I have certainly committed myself to providing as much information as possible. I had assumed that noble Lords might bring this matter back on Report, but I was certainly not intimating that I was prepared to come back with a different view then. That is all.

Well, I cannot criticise the noble Lord for looking at me while replying to my noble friend Lord Onslow, who is, as ever, at my shoulder, giving me advice of the highest quality.

This is an important issue. The Minister can be in no doubt that I shall come back to the matter on Report.

Clause 10 agreed to.

Clause 11 agreed to.

Clause 12 [Restriction on power to make a community order]:

On Question, Whether Clause 12 shall stand part of the Bill?

My concerns are with Clause 12(5), which inserts new subsection (1A)(b) into Section 151 of the Criminal Justice Act 2003. The clause states:

“Where the current offence is not punishable with imprisonment, subsection (2) applies where … on three or more previous occasions the offender has, on conviction by a court in the United Kingdom of any offence committed by him after attaining the age of 16, had passed on him a sentence consisting only of a fine”.

In other words, if three less serious matters are dealt with by means of a fine, the court can impose a community sentence but, if there have been more serious offences in the past, it cannot. So if we are dealing with an offence that is non-imprisonable, magistrates can impose a community order only if matters are aggravated by three previous fines, rather than more serious sentences.

For example, if an offender has been fined for three previous drunk and disorderly offences, the magistrates can impose a community penalty. However, if an offender has been the subject of a community order for a Section 5 Public Order Act offence, magistrates cannot impose another community order for a repeat similar serious offence. This means, inevitably, that a more serious offence may receive only a less serious disposal. It would also mean that offences that are similar in seriousness might receive different levels of disposal, depending on the sentences previously given. That is not sensible. How does it fit with the fact that previous convictions of all types aggravate seriousness?

This is another example of the Government trying to remove the discretion of a judge. There are a whole range of factors that the court would wish to take into account before determining whether or not to make a community order. In our submission, it must be a matter for the court at its judicial discretion to say how serious a particular offence is and to mark that with a community order if appropriate.

I congratulate the noble Lord, Lord Kingsland, on the point that he makes in this debate on Clause 12 stand part. He knows that the aim of the clause is to ensure that limited probation resources are directed where they can have most effect. This will help the Probation Service to concentrate on offenders who really need intensive supervision, either because they are dangerous or because they are at a very high risk of reoffending. Those who commit offences where the maximum penalty is a fine are unlikely to fall into this category; for them, a fine is usually the most appropriate punishment. That is why the Government believe that community orders should be available only for imprisonable offences. It seems so far in this debate that that view is shared in the Committee, as there has been no amendment to suggest that we are wrong in that thought.

For offences where a fine is the maximum penalty, courts will still be able to impose a fine or discharge, as at present, plus other ancillary disposals, such as compensation, driving disqualification or football banning orders, as appropriate. Committal to prison will still be available for wilful refusal or culpable neglect to pay the fine. The new provision will apply to offenders aged 18 and over only. Examples of offences for which a fine is the maximum statutory penalty are having no vehicle insurance, minor public order offences, careless driving, TV licence evasion, simple drunkenness and firework offences. These are all offences where discharge or a fine is generally the appropriate sentence and where it is not normally necessary to involve the Probation Service by imposing community interventions.

The history of all this is interesting. Before April 2005, some community sentences were available for imprisonable sentences only—for example, the community punishment order, which imposed unpaid work, and the community punishment rehabilitation order, which imposed unpaid work and supervision. Since that date, under the Criminal Justice Act 2003, the community order with its 12 possible requirements has been available for all offences. For the reasons that I have given, we are now restricting its use to imprisonable offences only. I very much hope that we have the support of the Committee on that. This means that for unpaid work, for example, which is the most frequently used requirement for a community order where there is only one requirement, we are doing no more than returning to the position under the earliest legislation.

The clause also updates the provision on the statute book; it is to this provision that the noble Lord, Lord Kingsland, refers in his argument. It allows a court to impose a community order where the offence is not serious enough to warrant such a sentence but where the offender has previously received three or more fines. This represents an exception to the restriction of the community order to imprisonable offences. However, as the noble Lord, Lord Kingsland, will know, this provision has not been commenced, but is amended so that it is consistent with restricting the community order to imprisonable offences. Even without this provision in force, the law allows a court to regard persistence as an aggravating factor when deciding seriousness, so that repeat offenders will receive higher fines than would otherwise have been imposed.

The noble Lord asked what happens if the three previous offences are more severe and demanded more than a simple fine. I will reply to that as best I can. This is not new. Section 151 of the Criminal Justice Act 2003, although not in force, has been law for some time. The Government do not believe that it lacks logic. Where previous offences were severely dealt with by a community order because they deserved one—they reached that tariff—it would seem overburdensome, even unfair, for them to count again towards another community order. We think that if persistent offenders keep committing offences for which a fine is the appropriate penalty, the time comes when the court needs to have the power to say, “A fine is obviously not stopping you doing this, so you now move up a bracket and you go up to being deserving of a community order”. It is that eventuality, which has been on the statute book now for some years but has not yet been implemented, that we are replicating in Clause 12 of this Bill.

I am most grateful to the Minister for his reply. Like the Prison Service, the Probation Service is under tremendous pressure. If I have understood him correctly, the main motive for this provision is to take some of the pressure off the Probation Service by requiring these three hurdles—the three fines—to be leapt before a community order can be imposed. Essentially, a resources factor is driving the Government’s approach to this clause. I am really asking the Government whether that is the right way to fetter the discretion of the magistrates. They have to deal with individual cases and there will be circumstances in which new subsection (1A)(b) under Clause 12(5) will fetter their discretion in a way that they will, inevitably, consider wholly inappropriate.

We take the view that discretion should be retained to decide on whether a community disposition should be made, irrespective of the number of times that fines had been levied previously. Given that view, would the Government be attracted by an alternative approach, whereby guidance is issued rather than there being a legal requirement under the Bill?

What we say here, as I understand it—if I am wrong, I will be corrected—is that a community sentence becomes, as it were, available if someone commits three separate offences and is fined three times. However, just because that person becomes liable for a community sentence does not mean that they necessarily receive one. The Sentencing Guidelines Council guidelines published in December 2004, New Sentences: Criminal Justice Act 2003, which cover the imposition of community orders, say:

“Sentencers must consider all of the disposals available (within or below the threshold passed) at the time of sentence, and reject them before reaching a provisional decision to make a community sentence, so that even where the threshold for a community sentence has been passed a financial penalty or discharge may still be an appropriate penalty”.

If those sentencing guidelines are followed, the magistrates may decide that the offender merits a community sentence but may still decide to fine him or discharge him. In other words, their discretion is not fettered.

Precisely. Why, therefore, do the Government want to go beyond that in Clause 12?

In Clause 12, we are setting out, as I understand it, various guidelines for the court to follow. We are saying in the clause that a community order should not be made unless an offence is punishable with imprisonment. It is not as though that concept is new; it existed in law until, as I understand it, 2003. We say that because we want the Probation Service’s resources to be used for serious offenders in particular and for those who we think may gain from the supervision and training that probation can bring.

I entirely understand what the Government’s motive is; I am simply suggesting to the noble Lord that this matter would be better dealt with by guidance than by statute. I think that we have probably talked this through as much as we need to do at this stage, but I shall certainly consider bringing this matter back on Report.

Clause 12 agreed to.

Clause 13 [Sentences of imprisonment for public protection]:

80A: Clause 13, page 10, line 9, leave out “in any part of the United Kingdom”

The noble Lord said: This long series of government amendments attempts to refine new Schedule 15A, which I am sure we will discuss in due course, which this Bill proposes to insert into the Criminal Justice Act 2003. New Schedule 15A sets out a relatively small list of particularly grave offences that can render an offender liable to a public protection sentence even where his or her immediate offence does not meet the two-year minimum tariff threshold. So, if an offender has a previous conviction for one of these offences—a Schedule 15A offence—and on a future occasion commits a further sexual or violent offence, the courts will have the power to impose a public protection sentence upon him or her even where that tariff for the instant offence is below the two-year threshold.

We are clarifying the schedule in several respects. We wish to put beyond doubt the fact that previous convictions for the inchoate versions of the listed offences will qualify for a public protection sentence even where the trigger offence does not meet the two-year threshold. The amendments in this respect reflect law reform developments by referring to the provisions of Part 2 of the Serious Crime Act 2007, which now govern the position on encouraging or assisting offences. Similarly, new Schedule 15A is amended to include reference to an offender who aided or abetted the commission of an offence that is listed in the schedule.

We think that these are sensible clarifications of the scope of new Schedule 15A and will enhance public protection. I hope that the Committee will agree that an offender may play a substantial role through inchoate offences; that he may be no less dangerous, because, for example, he was interrupted or prevented in the course of the offence; or that he may have been an accessory to the committed previous offence.

It will remain the case that there is judicial discretion in whether a public protection sentence is given. The court will not be obliged to impose a public protection sentence simply because an offender has a previous conviction for an offence listed in new Schedule 15A; but it may do so if in the circumstances it thinks that that is appropriate.

We are also including the offence of murder in new Schedule 15A. If an offender who has been released on licence from prison for murder commits a further violent or sexual offence, he will qualify for a further public protection sentence even if the further offence would be below the two-year threshold. While in practice this may make little difference, given that all murderers will be on life licence, we accept that its inclusion is logical and makes the law more complete.

In this group of government amendments, we also include offences under service law that correspond with the offences listed in Schedule 15A. This provision is not without precedent. A similar form is used in Schedules 3 and 5 of the Sexual Offences Act 2003 to set out the offences that make an offender liable to the imposition of a sexual offences prevention order. It also reflects the drafting approach used in Schedule 34 to this Bill for the purposes of construing the meaning of “child sex offences”. I beg to move.

Why are the words,

“in any part of the United Kingdom”,

being omitted? Does that mean that the provision would apply if the person had been convicted of the offences, or their equivalent, anywhere in the world? What is the purpose of excising those words?

I apologise for rising very slowly to my feet; the noble Lord deserves an answer. The phrase is being deleted because of the addition of service offences, which, if I remember my service law right, can be committed outside the United Kingdom.

Now that the Minister has given that explanation—which took two Ministers to discover—does he think that that should be made explicit? The word “convicted” can refer to the whole world. Why does he not table an amendment that refers to being convicted under service law, or words to that effect?

The whole world is involved because British service personnel can sometimes be found in any country in the world. I will of course consider what the noble Lord suggests.

I was referring not so much to the place as to the jurisdiction of anywhere in the world. The Minister is telling us that he is referring to the service jurisdiction anywhere in the world, not to any court anywhere in the world.

On Question, amendment agreed to.

81: Clause 13, page 10, leave out lines 11 and 12

The noble Lord said: This amendment concerns IPPs. In moving it, I am aware that I will be opposed not only by the Government but also by the noble and learned Lord, Lord Lloyd of Berwick. It is so rare that I find myself in discordance with the noble and learned Lord, Lord Lloyd, that I thought that I should mark the occasion by an introductory observation.

The conditions for imposing an IPP are: first, that the crime must be one of 153 specified sexual or violent offences; secondly, that the offence must be capable of attracting a sentence of 10 or more years of imprisonment; and, thirdly, the offender must pose a significant risk of causing death or serious injury by the commission of further offences. In such cases, the judge must impose an IPP. The offender must serve a minimum tariff before he can be considered for release but can be held in custody as long as he is considered to pose a threat to public safety.

The latest figures indicate that at least half of all sentences given for threats to kill, child sex offences, arson and sexual assault, resulted in a tariff of less than two years. That means that if the Government press ahead with their plans, those individuals will not be eligible for IPPs, given that their sentence length would be below the “to be introduced” threshold. Does the Minister accept that there is a reason that judges sentence people to IPPs and that it is because they are dangerous? Why are the Government so keen to remove this power from the courts? Is it not the case that these proposed changes are dangerous and have more to do with reducing the prison population than protecting the public?

By definition, the offenders who would now no longer be eligible to receive IPPs would be those who had committed serious sexual or violent offences and who posed a significant risk of causing death or serious injury by reoffending, but where the offence for which they were being sentenced would otherwise have carried a fixed-term sentence of less than four years. I beg to move.

I must advise the Committee that if this amendment is agreed to, I shall be unable to call Amendment No. 82 because of pre-emption.

I had intended to make a rather lengthy speech on this amendment, but in view of the time I shall cut it short. The Government have accepted that the effect of Sections 225 to 229 of the 2003 Act has been other than the expected. Mr David Hanson, the Minister in charge of the Bill, described the relevant provisions as well-meaning, but he then went on to say that they no longer serve a proper purpose. I agree, but I think that it is a serious understatement.

In truth, the effect of the relevant provisions has been catastrophic. They are one of the major causes of overcrowding in our prisons today. Anne Owers, the Chief Inspector of Prisons, dealt with indeterminate sentences at some length in her very recent report. She described what had happened as a debacle. Does the noble Lord agree with that description? I suspect he does because there are now over 3,400 men in prisons serving indeterminate sentences, nearly half of them for relatively minor offences for which the tariff would be less than two years. The number is increasing at the rate of 150 a month.

Many of those at the lower end of the scale have already completed their tariff, but they cannot get before the Parole Board, which would be their next step, for two main reasons. First, the Parole Board is grossly overburdened. The board estimates that if things go on as they are, they will need to make room for a staggering 4,000 hearings in 2009-10. The word “staggering” is not mine but is that of Anne Owers. Secondly, those who wish to go before the Parole Board cannot do so because, as the prisons are so overcrowded, they cannot get on to the training courses that they need to complete before they can apply to the Parole Board. As the Lord Chief Justice said in a recent speech, we cannot go on like this.

Happily, the Government have now at last recognised the mistakes that they made in 2003, hence Clauses 13 to 17 of the Bill, which go a certain way in the right direction, but not, in my view, anything like far enough. That is the purpose of my later amendments.

I must turn to the Conservative Opposition. What is their attitude to all this? Do they support the Government in their belated attempt to do something about the crisis in our prisons or do they not? I regret very much to say that the answer must be that they do not. Of course, they are entitled to say, as they do, that overcrowding is all the Government’s fault and that they should have built more prisons. Of course, they can make, and are right to make, a strong political point about prison building, but the crisis in prisons is now too serious and too urgent for political point-scoring of that kind by either side. In a recent speech, the Lord Chief Justice called for a national debate on the whole question of prisons and sentencing. He added this warning:

“Such a debate will be of no avail, indeed it will probably not be a possibility, unless those taking part are prepared to put to one side the opportunities that this subject always provides for scoring political points and to consider, objectively, what is in the best interests of our society”.

Surely it is now up to the main political parties to put aside their fears of being thought soft on crime and to think instead of the injustice being done to those serving indeterminate sentences for minor crimes without any certainty of being able to put their case before the Parole Board and who are now, therefore, without any hope of early release. Above all, we must not make the situation worse by adding to their number, which is what would be the effect of Amendment No. 81. The purpose of that amendment, we are told, is to leave Section 225 as it is, to remove the proposed threshold of two years. If so, the indeterminate sentence will remain available for those who have committed quite minor crimes. If that is the purpose, it will only make overcrowding worse. The Conservative Opposition are moving in the wrong direction and I oppose the amendment.

I add one last point. The effect of the amendment may be something quite other than what the noble Lord assumes. If you leave out new subsection (3B), as the amendment proposes, the indeterminate sentence could be imposed only where the offender has previously committed a very serious offence such as murder or rape, as set out in Schedule 6, which covers only 22 very serious offences compared with the existing 153 offences under the old Schedule 5. So the effect of the amendment would be to reduce the number of those for whom an indeterminate sentence is available. If that is the effect of the amendment, as I believe it to be, though I may well be wrong, I would support it. But I would still prefer to reduce the number by increasing the notional minimum term from two to four years. In the mean time, I wait to hear whether my reading of the effect of the amendment is as I say.

Like the noble and learned Lord, Lord Lloyd, I shall be brief. In the context of this amendment, I had hoped to pay some attention to the conduct of the sentence itself. When this was first announced in the 2003 Act, a number of us were very concerned about what it would mean for the Prison Service’s ability to do what it should be doing with and for prisoners on behalf of the public. All our worst fears have come to pass: not only are the prisons choked with people, the Prison Service simply does not have the resources, people, programmes or anything else that is needed to do what needs to be done with and for these people.

I had hoped to link the problem of dealing with indeterminate-sentenced prisoners with the number of those who are sentenced for natural life. There is no doubt but that some people’s dangerousness continues in such a way that the indeterminateness of their sentence means they will never be released. I say that because one group that always concerned me as chief inspector were those who had been sentenced to natural life and for whom there was no hope of release, so they had nothing positive to aim for. Not only was there nothing positive for them; the situation also had an enormous effect on prison staff. One aspect of this sentence which has not been given due credence or attention is the impact on prison staff of having to deal with this group of prisoners who become more suicidal, difficult and frustrated. They are a problem that will get worse. It cannot be solved by tinkering with timing. It must be looked at so that it affects only those whose dangerousness is such that the indeterminateness is linked to public protection. Rather than being viewed almost as an academic exercise, it should be seen as an exercise in sensible sentencing.

This has been an interesting introduction to a number of amendments that we shall deal with in relation to indeterminate sentences. The Government very much welcome the opportunity for a serious debate on these matters. My right honourable friend the Lord Chancellor has signalled that he is very much prepared for a serious debate. I also think that the recommendations in the report of my noble friend Lord Carter, particularly on a sentencing framework for the future, on which work led by a senior member of the judiciary has now been done, may offer a constructive way of dealing with these matters in a sober and mature way. They will ensure that we are in kilter with the legislation, the action of sentencers and the question of the prison population. I am sure that that is a constructive way in which to go forward.

We have had a good introduction from the noble Lord, Lord Kingsland, and others on the reason why public protection sentences were introduced. They were to protect the public and it is clear that the courts have taken up the use of those sentences in substantial numbers. There have proved to be issues with the focus and operation of sentences. Perhaps we are following the law of the noble Lord, Lord Elystan-Morgan, but it had not been foreseen that many IP prisoners would have such short tariffs, although the legislation as it stands does not prevent that. The figures I have suggest that around 30 per cent now receive a tariff of two years or less. The average for all IPPs is 38 months and the record so far is 28 days. Aside from the question this raises as to whether the sentences are at an appropriate level of risk management for offenders whose trigger offence justifies only a low tariff, clearly, on a practical level short-tariff prisoners are difficult for correctional services to manage and a disproportionate amount of resources are used in trying to do so. As noble Lords have said, they make great demands on the Prison Service, which must prepare them to appear before the Parole Board, and on the Parole Board in terms of its workload, about which we heard something recently.

At the end of January there were 3,850 offenders in prison serving an IPP. I understand that 17 IP prisoners have so far been released and it is predicted that the potential IPP population could grow to around 12,500 by 2011. We have already taken measures to assist the situation of those currently in prison on indeterminate sentences, but we believe that that is not sufficient to deal with the particular issue that we face. The statute is being reformed to ensure better use of the sentence and to enable us to manage risk more effectively across the piece.

My right honourable friend the Lord Chancellor announced his intention to make changes to this legislation and in particular to impose a seriousness threshold that should be met before an indeterminate sentence can be imposed. My noble friend Lord Carter of Coles recommended this approach in his review. We have already heard the comments of Anne Owers, Her Majesty’s Chief Inspector of Prisons, in support of that intention.

On the substantive point raised by the noble Lord, Lord Kingsland, we think the threshold that we are suggesting is reasonable. It will target the most dangerous offenders without violating risk management. There is an association between the seriousness of an offence and the risk of future conviction and causing future harm, although that is obviously not the only factor in risk assessment. There is also the principle issue about the degree to which one can lock a person up on the basis of future risk. That, of course, goes to the core of the legislation. The question is whether the balance is right, and in the light of experience we think that we have not got it right. It had not been envisaged that the sentences would be used so widely for less serious offenders.

In answer to the noble Lord, Lord Kingsland, as a safeguard, we have included in the threshold legislation exceptions for those offenders who have shown themselves to be very dangerous by committing a particularly serious offence. When an offender has committed one of the offences set out in new Schedule 15A to the 2003 Act, the threshold need not apply to him if he commits future sexual and violent offences. The court will not be obliged to give him a public protection sentence, but will be able to if it sees fit in all the circumstances.

I come to an associated question of how we are improving interventions for those people covered by the current IPP regime. I say to the noble Lord, Lord Ramsbotham, that I well understand the pressures on prison staff. That point is very well taken. We have allocated £3 million to provide for additional assessments and interventions this financial year. We need to provide the right courses, programmes and training, and ultimate responsibility in that context still rests with the Parole Board and satisfying it that the level of risk is reduced. That still rests with the offender, but clearly there is more that we need to do to ensure that the appropriate programmes are in place.

I also take the point raised by the noble Lord in relation to those prisoners who are likely to remain in prison for a very long time. We have debated on a number of occasions the many challenges facing the Prison Service at the moment, particularly in view of the population pressures. But I would say to the noble Lord that in the past few years we have also seen appreciable improvements in many of our prisons in the development of appropriate programmes and in dealing with some of the other issues that impact on these prisoners. The noble Lord mentioned mental health problems, in particular, which I endorse. The working group review established under the chairmanship of my noble friend Lord Bradley is considering some of those matters.

Clearly a question of judgment is involved. We think the principle of these sentences is right, but we did not get the balance right. We have seen the impact in terms of the number of very short sentences that have become embraced within the system. We will discuss later whether the two-year threshold is appropriate, but overall we think that we have the balance right. This will be a better foundation for this sentence structure in the future.

Does the Minister accept the interpretation of the noble and learned Lord, Lord Lloyd, of the amendment? That is that the sentence could not be imposed unless one of those serious offences has resulted in a conviction. We will no doubt hear from the noble Lord, Lord Kingsland. We on these Benches are in some quandary as to whether we should support the amendment or not.

My initial understanding is that the interpretation of the noble and learned Lord is correct. However, I will seek further advice and write to Members of the Committee with a definitive view on this.

My view is that the amendment says what I said that it said when I opened this debate. However, I am happy to talk to the noble and learned Lord, Lord Lloyd of Berwick, between now and Report. If his view proves correct, as it frequently does, I shall recast the amendment accordingly in time for Report.

The real problem with IPPs and prison place availability is that if you are in prison for an IPP and have served your minimum term, you cannot get out without being rehabilitated. Rehabilitation requires considerable educational input by experts on the prison premises, and equally requires the prisoner, as a result of going through this process, to have manifestly changed his outlook on life. It is currently quite impossible to initiate, let alone complete, these processes because of the overcrowding. IPPs are not merely not working at the level which the Government now seek to exclude, they are not working full stop. This is why there is so much discontent in our prisons among those who have been sentenced to an IPP: they are simply not being given an opportunity to get out of jail. Until that issue is resolved—and it cannot be resolved in the present state of overcrowding—we will not see much constructive progress in this area, whatever the outcome of this clause in the Bill.

My difficulty with the clause is that the length of the sentence and the assessment of dangerousness are wholly unconnected. The fact that somebody has been given a sentence with a minimum tariff of two years—which means that the IPP will no longer be applied to him if the Bill gets through—is completely irrelevant to the judge’s view of his likelihood of committing a dangerous offence in the future. That is why the Government are being illogical. The question of the risk and the question of the level of sentence for the actual offence committed are completely separate issues dealt with in a completely separate way by the judge.

Of course, I agree with all Members of the Committee who say that IPPs are not only contributing seriously to prison overcrowding but also affecting the psychological state of many prisoners. That is true. However, with great respect to the Minister, the way that he is going about solving this problem is wholly illogical. We owe a duty to the public to protect them from dangerous people. If judges make an assessment that these people are dangerous, even though they have given a sentence which has a minimum tariff of two years, we must still accept the judgment of the court. That is why I find the Government’s approach so difficult to accept.

Does the noble Lord not accept that if one increases the threshold to five years, the number of those for whom an IPP will be available will be reduced? Necessarily, therefore, the number coming to prison on these sentences will itself be reduced. That must be desirable.

I accept that absolutely and see the attractions of what the noble and learned Lord says. The difficulty is that there is no logical link between the length of sentence for the actual offence committed and the assessment by the judge of the likely future commission of further dangerous offences. It is the discordance between those two things which I—

Does the noble Lord not agree that, if the interpretation of the noble and learned Lord, Lord Lloyd, of the effect of the noble Lord’s amendment is correct, the sentencing judge would at least know that the defendant before him had committed murder, manslaughter, wounding, rape, use of a firearm, robbery or various sexual offences with children? That would sufficiently indicate that he was a dangerous person if he then went on to commit a further offence.

If the interpretation of the noble and learned Lord, Lord Lloyd, of the amendment is correct, then everything I have said in support of it would be beside the point. The amendment was widely canvassed in another place. As far as I know, nobody interpreted the amendment as the noble and learned Lord has done—but, of course, another place did not have the advantage of the noble and learned Lord’s presence and jurisprudential wisdom which, as all noble Lords know, is vast.

I think the Minister has got the point I am trying to make. I am not going to pursue this matter any further but, of course, we will return to it on Report.

Can an outsider join this conversation between four learned Members of the Committee? Ought one not at least to have in mind a human rights aspect? It seems that indeterminate sentences are now being handed out to people for whom the tariff would be two years. They then find themselves in a trap. To get out of the indeterminate sentence there is a doorway painted on a wall: “Come this way. You will do your course, which will make you a better citizen and help you understand how to lead your life in the future and apply to get out of the indeterminate sentence”. In fact, that is a hollow farce because you cannot enter through that door. You are in the system. You should not be an indeterminate sentence man or woman anyway, and you have no hope of getting out. The right to liberty is guaranteed by Article 2 of the European Convention on Human Rights. No doubt there is an exception in the case of imprisonment, but this is the most bizarre type of imprisonment and, as one listens to the debate as a newcomer, it has some absolutely extraordinary dimensions. It is very unjust.

That is a characteristically perspicacious intervention by the noble Lord, Lord Neill of Bladen. There seem actually to be two human rights issues here. First, the point about locking somebody up on the basis of future risk itself raises a human rights question. Secondly, the basis on which an IPP order is made by a court is that the individual has a right to be rehabilitated, or a least has the right to an opportunity to be rehabilitated. If that right is in practice a fiction, is that a denial of someone’s human rights under the convention? It must be an arguable case, must it not?

None the less, Parliament has legislated for this provision and widely debated it. It must have satisfied itself at the time, whatever the debate, that this was an appropriate way forward. The issue that we face today is that an unexpected number of prisoners with very short tariffs have become caught by this provision. That is what we seek to deal with through the changes and setting a new bar. We hope that we have the balance right between risk, public protection and being fair to the individuals concerned.

What is the state of the litigation? I understood that in the High Court—in one case, at any rate—the judges had decided that it was illegal and a breach of human rights to hold someone after the tariff had expired. That was reversed in the Court of Appeal, although it said that the failure to provide courses was illegal and in breach of human rights. Has the case gone to the House of Lords?

We are considering the matter. As far as I understand it, as of tonight we are still considering our position in relation to whether to seek further appeal against that decision.

I beg to move that the House do now resume. In moving this Motion, I propose that the Committee stage does not begin again until 8.52 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.