I thank noble Lords who have taken part in this debate. Perhaps I could cover numbers and costs in the revised impact assessment that I will bring back to the House.
I say to the noble Lord, Lord Beecham, and the noble Baroness, Lady Howe, that I certainly do not want to see any benefits gained from a successful rehabilitation programme being dribbled away in the
costs incurred through dealing with breach. That would be very self-defeating indeed and we must look carefully at that. However, although this is a wonderful Chamber in which to discuss these problems, I sometimes think that we try too hard to be understanding on these issues. In trying to understand all these terribly complex problems with which these people are faced, we do not face up to the fact that they have a choice. As I have said in previous debates, I remember from my childhood young people who experienced in their upbringing many of the problems we talk about in this House but who nevertheless grew up to be honest, decent, honourable members of society. It is a choice.
In our efforts to understand, I sometimes think that we leave some of these offenders with the belief that the gun is never loaded and that they will never have to face the consequences. As the noble Lord, Lord Ponsonby, has said in earlier debates, some offenders who have been given every chance, shown every understanding and been offered every opportunity still appear before the courts and the magistrates have no alternative. I am as willing to be as woolly a liberal as the next man, but we must also send a very clear message that as a society we do not intend to tolerate anti-social and criminal behaviour without a firm response. If we do not do that, some of the characters we are trying to deal with will never apply themselves to the offers we are making them that we hope will help them put their lives together again.
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I will try to deal with the various amendments, and I accept with alacrity the kind offer of the noble Lord, Lord Beecham, to reschedule his amendments into this group. I turn first to Amendment 14 from the noble Baroness, Lady Howe. Its effect is simple to understand: it would remove the power of the court to commit an offender to custody for failing to comply with the conditions of their top-up supervision. I do understand concerns about the risk of some offenders ending up back in prison for breaching their supervision conditions. We should, however, not lose sight of the fact that far too many of these offenders are already ending up back in custody because they have been released without any conditions and have gone on to reoffend.
There has to be a balance between the need to ensure there is some grip on offenders under supervision and the need to keep them out of custody and on programmes designed to rehabilitate them. The Bill gets this balance right. First, there is discretion for supervisors to warn offenders before bringing breach action. Secondly, the decision to bring breach action will always be taken by the public sector. It is not in the interests of the public sector to have lots of offenders recalled to custody, which we all know is expensive.
Then we have the need in the Bill to demonstrate to the court that a breach has occurred and with no reasonable excuse. The court can find there has been no breach or that there was a reasonable explanation for the breach. Only when it is satisfied that there has been a breach can the court decide on the action to take on the breach. I would stress to the noble Baroness that the court may decide that, despite there being a breach, no sanction should be applied to the offender.
This is because Clause 3 creates new Section 256AC subsection (4) of the 2003 Act, which states that, if there has been a breach, a court “may”—not “must”—impose a sanction. I am quite sure that my noble friend Lady Hamwee will make that part of her bedtime reading because she likes to go back and check whether we have got this exactly right.
Even when the court decides there should be a sanction, it has three alternative options to consider before it decides to commit an offender to custody. If it does commit to custody, the maximum period available to the court is 14 days and this period does not amount to a new sentence, meaning it does not trigger a new period of supervision. As I say, I recognise the concerns about returning people to custody, but we have to put these safeguards in place. We also need to give the courts a range of sanctions that are effective in punishing an offender for breaching conditions and in getting the offender back onto the rehabilitation activities as soon as possible, which is the intention of the supervision period.
The noble Baroness’s amendment would create an inconsistency with existing powers. This is because the courts can already commit offenders to custody for failure to pay fines or for failure to comply with requirements of community orders. It would, I suggest, create an anomaly that courts were able to commit to custody for lesser sentences but were not able to do so for breach of conditions attached to more serious sentences involving custody. I hope my reassurance on the safeguards and the discretion given to the courts, reassures the noble Baroness so that, at the appropriate time, she will not move her amendment.
I now turn to Amendments 13, 16 and 17, proposed by my noble friends Lord Marks, Lord Dholakia and Lady Hamwee. Amendment 13 adds a qualification that the sanction for breach of top-up supervision may be imposed if the court is satisfied that the interests of justice so require a sanction. I hope that I have already made clear that the provision as drafted gives the court an option to decide not to impose a sanction even if a failure to comply with the condition has been demonstrated. This is because the court may impose a sanction for a breach but does not need to. The addition of an “interests of justice test” is unnecessary as the court already has the discretion to decide not to impose a sanction and would do so only if it felt it necessary. In other words, the court already has discretion to decide whether to sanction in the interests of justice.
Amendment 16 would mean that the court considering a failure of the offender to comply with top-up supervision conditions could recommend to the Secretary of State that the supervision conditions should be varied and suggest ways in which they may be varied. It will remain for the Secretary of State to set licensing conditions and now to set the new top-up supervision conditions. This is a continuation of what happens now with offenders serving longer sentences that already attract release on licence and is the most practical approach to setting conditions of supervision. However, I take my noble friend’s point that there may be circumstances in which a court dealing with a breach can point out that the rehabilitation of the offender might be better addressed by a variation of the Secretary
of State’s supervision conditions. That seems a sensible and practical suggestion and I will take it away and examine the technicalities of the process and return to this at a later stage.
Amendment 17 would create a statutory duty on the Sentencing Council to publish guidelines with regard to the court’s powers to deal with failure to comply with supervision conditions. I expect that the independent Sentencing Council will want to provide guidance on the treatment of breaches as it does, for example, on breaches of other orders. I also expect that this will be a key element of the training for the judiciary that the Judicial College will want to provide. As noble Lords will know, the Sentencing Council is an independent body set up and governed by the provisions of the Coroners and Justice Act 2009. Apart from two specific general matters relating to sentence calculation the Act, does not specify what guidelines the council must produce.
There is already a power for the Secretary of State or the Court of Appeal to refer to the council any matter that it considers the council should consider issuing guidelines on. It is also open to any other person to make representations to the council about guidelines. I have already said that I would expect that the council will consider guidance for the courts in this area, but my noble friends will also appreciate that I am anxious to maintain the independence of the Sentencing Council. I would not want to encourage every Bill coming before the House to have a provision that required the council to issue guidelines on matters affected by it. I am confident that the council will consider the provisions of this Bill and issue any guidance it considers necessary. I hope that my noble friend will understand that reassurance and feel able to withdraw his amendment.
I turn to Amendments 15 and 18 from the noble Lord, Lord Beecham. Are those the ones? That is good. I know that it throws everything into confusion if you move them out of order, but I will do my best. As I said in relation to the previous group of amendments, and particularly that in the name of the noble Baroness, Lady Howe, I understand the concerns about the risk of some offenders ending up back in prison for breaching their supervision conditions and I understand why a number of noble Lords have expressed concern about this. The approach taken by these amendments is somewhat different from that taken by the noble Baroness, Lady Howe, in the previous group in that rather than remove the option of committal to custody, they insert a provision which requires the committal to be a last resort after all other means of dealing with the breach have been exhausted by the court.
As I have outlined already, there are a number of steps to reach before the offender will be committed to prison. So there is an option for courts to take no action at all before they consider the four sanctions available to them. There is no hierarchy of sanctions here. It is for the court to decide what the most appropriate sanction is for any particular breach of conditions. Of course, committal to custody is an onerous sanction, but the courts will be aware of this and will take that into account in deciding the appropriate and proportionate response to any breach.
It is not necessary to set out the concept of the use of committal as a last resort and I would point out that it is not clear exactly what that would mean. I also suggest to the noble Lord, Lord Beecham, that Amendment 18 is unclear about what amounts to exhausting all other matters. Does it mean that a court must first use the option of imposing no sanction, then a fine for a further breach? It seems simply to be impractical and unduly restrictive on the discretion of the courts. There will also be offenders who will fail to comply with conditions in such a way that will justify committal to custody as a first response. I suggest to the noble Lord that we have some faith in the ability of the judiciary to make reasoned, proportionate and sensible decisions about breach, and I ask him not to move his amendments.
Having listened to the debate and heard the tenor of my reply, I hope that the House will believe the point that the noble Lord, Lord Beecham, made that there is not a great deal of difference between us on this. I hope that I have demonstrated that in the way that we are approaching this matter we are providing the supervisors at every stage of this process with a great deal of discretion. However, we must face up to the reality that there will be those who, by their response to the assistance that they are given, will provoke the only response that we can make—to return them to prison. I hope, however, that it is also clear that we provide this wide discretion. This area is not a matter of punishment but real assistance to those who are willing to receive it. There should be a real commitment by society to make it clear to those who are in this process that we mean it and that we expect them to mean it too. I ask Members to withdraw their amendment.