Criminal Justice and Courts Bill

Public Bill Committee, 18 March 2014.

David Crausby (Labour, Bolton North East)

Before we begin our line-by-line consideration of the Bill. some brief explanation may be useful for those who are relatively new to Public Bill Committees.

The selection list for today’s sitting is available in the room. This shows how the amendments selected have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. A Member who has put their name to the lead amendment in a group is called first; other Members are then free to catch my eye to speak on the amendments in the group. A Member may speak more than once in a single debate. At the end of the debate on a group of amendments I will call the Member who moved the lead amendment again. Before they sit down they will need to indicate whether they wish to seek leave to withdraw the amendment or to seek a decision.

If any Member wishes to press any other amendment in a group to a vote, they need to let me know. I will work on the assumption that the Government wish the Committee to reach a decision on all Government amendments. Please note that decisions on amendments do not take place in the order they are debated but in the order they appear on the amendment paper. Where this is not already indicated on the selection list, I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments. I hope that explanation is helpful.

Clause 1 - Maximum sentence for certain offences to be life imprisonment

Jeremy Wright (Conservative, Kenilworth and Southam)

I beg to move amendment 1, in clause 1, page 1, leave out lines 12 to 15 and insert ‘, to imprisonment for life’.

Dan Jarvis (Labour, Barnsley Central)

It is a pleasure to serve under your chairmanship again, Mr Crausby, and I look forward to doing so during our consideration of this Bill. I thank the Minister for laying out the Government’s rationale for the amendment. Before I respond to his points directly let me say a few words to place them in the context of the Bill.

The shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan) was clear on Second Reading that there are parts of the Bill that the Opposition support, parts we feel need to be improved, and parts that we oppose outright. Where there are shortcomings, provisions in need of clarification or policy lacking supporting evidence, we will do our duty as an Opposition, but where there are sensible proposals to protect the British people and make the criminal justice system work better for the public, they will have our support.

Subject to assurances from the Government on some important issues, we hope to be able to support much, if not all, of part 1. That includes clause 1, which increases to life imprisonment the maximum sentence for three terrorism-related offences: the making or possession of explosives under suspicious circumstances; weapons training for terrorism; and training for terrorism. The amendment would extend to Scotland the proposed increase in the sentence for making or possession of explosives under suspicious circumstances. In the Bill as drafted, the increase would apply only when the offence is committed in England, Wales and Northern Ireland.

I have two comments on the amendment and the clause as a whole. First, ensuring that the public are properly protected from the most dangerous and violent offenders is something that we wholeheartedly support. I am sure the whole Committee appreciates the gravity and seriousness of such crimes and the importance of having appropriate sentences in place for terrorist offences. That is why the last Labour Government introduced the terrorism legislation that this Bill amends. However, the Government’s impact assessment acknowledges that no offenders were convicted for either weapons training for terrorist purposes or training for terrorism in the years ending June 2012 and June 2013. A separate answer to a parliamentary question by the Minister for Security and Immigration on 3 March confirmed that there were only seven instances of people being convicted of terrorism and weapons training in the past 10 years. In those cases, the average custodial sentence was less than five years for providing weapons training, seven years for receiving weapons training, and less than four years for attending weapons training. For making explosives, the average custodial sentence is only about two years. Again, I stress those are based on a very small number of cases.

With that in mind, some may be puzzled as to why lengthening the maximum sentences for those particular offences has suddenly become urgent and what the Government’s evidence base is for doing so. An unkind mind may think that the clause is more concerned with attracting headlines and looking tough than responding to the needs of the justice system. Will the Minister provide the Committee with further detail on why there is a need to increase sentences for those offences?

Secondly, specifically on amendment 1, many will also scratch their heads as to why a proposal to have different maximum sentences in different parts of the UK for the same offence was proposed in the first place. The Minister is amending his own Bill. Can he explain what has changed in the 41 days between today and when the Bill was first presented to Parliament? What was the Government’s initial rationale for the proposal and what representations convinced the Government to extend the same maximum sentence across the whole of the United Kingdom?

In summary, we do not oppose the increased sentences, but we question the Government’s evidence base for doing so. We also have concerns about the overall impact that the reforms will have for sentencing and release in part 1, but I will address those in more detail when I speak to our amendments 8 to 11 later.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am grateful for what I think was the hon. Gentleman’s support for not only this amendment, but for much else in part 1, and I look forward to debating part 1 with him in that spirit.

On the specific points made in relation to the amendment, he will appreciate that, in general terms, justice is a devolved matter in Scotland, so it is always important for us to discuss with our colleagues in Scotland how such legislation should apply across the United Kingdom. I am delighted that we have been able to reach the position set out in the amendment, because it seemed illogical that there should be a different sentencing regime for the same offence applying in Scotland compared with the rest of the United Kingdom.

In relation to the broader points made about clause 1, the hon. Gentleman is right that there were no offenders convicted of the two offences, one under the Terrorism Act 2000 and the other under the Terrorism Act 2006, which clause 1 covers, in 2012 and 2013. There have, as he said, been convictions for those offences in preceding years. I am sure he recognises that the key point is not how many of those offences there are or even perhaps the sentencing that has been applied in previous cases, but how serious the offences could be and the scope for sentencing that we wish the judiciary to have. It is important to maintain consistency in the sentencing regime for all offences on the statute book, keep that up to date, and make sure that the judges have the powers they need to deal with potentially very serious offences indeed. For that reason, we have proposed the changes in clause 1.

The hon. Gentleman’s other point, which I accept primarily applies not to clause 1 but to other clauses, is that there may be a significant impact on sentencing and release provisions and on the work load that that brings with it. That, of course, cannot be consistent with the argument that hardly anyone will end up receiving sentences under the clause. Either lots of people will get one, and there will be a big impact on the Parole Board and the prison system, or no one will get them, in which case there will be no such impact. However, as I said, I accept that he made that point primarily in relation to debates that are to come.

Clause 2 - Specified offences

Jeremy Wright (Conservative, Kenilworth and Southam)

The clause makes some necessary amendments to schedule 15 to the Criminal Justice Act 2003, which sets out the list of violent and sexual offences to which the dangerous offender sentencing provisions apply. Offenders who commit such offences are eligible, in appropriate cases, for the extended determinate sentence, which allows for long extended licence periods to be imposed on the offender for public protection, and means that the offender must serve at least two thirds of his custodial term in prison.

The clause adds to schedule 15 the offence under section 4 of the Explosives Act 1883—the one we have already discussed. Although the offence is not currently on schedule 15, it has been identified as an offence that may be charged in serious terrorism cases, so we wish to add it to schedule 15B to the 2003 Act and include it in the enhanced dangerous offender sentencing scheme, which means that it must also be added to schedule 15. The clause also adds to schedule 15 the common law offence of incitement to murder and the offence under the Serious Crime Act 2007 of encouraging or assisting the commission of murder, which replaced the common law offence. Those offences are currently included in schedule 15B but not schedule 15.

The clause also restates the other provisions about inchoate offences in schedule 15 to include express reference to offences under the 2007 Act. We are also making a minor technical correction to ensure that the correct form of the offence of brothel keeping under the Sexual Offences Act 1956 is on the schedule.

Dan Jarvis (Labour, Barnsley Central)

As the Minister outlined, the clause adds three offences to schedule 15 to the 2003 Act, making them punishable by life imprisonment or a custodial sentence of 10 years or longer. Those offences are: making or possession of explosives under suspicious circumstances; attempting, conspiring or incitement to commit murder; and keeping a brothel used for prostitution. We do not object to the clause, so I do not propose to spend much time on it. I know that the Committee is keen to make progress, as the most significant reforms to sentencing in the Bill are contained in later clauses.

As the Committee has already agreed to increase the sentence for making or possessing explosives under clause 1, adding that offence to the schedule is a natural consequential step. The aiding and abetting of murder and the keeping of brothels for prostitution are equally serious offences and require appropriate sentencing.

Julian Huppert (Liberal Democrat, Cambridge)

Did I hear the hon. Gentleman say that the aiding and abetting of murder and keeping a brothel are very similar offences?

Dan Jarvis (Labour, Barnsley Central)

I am happy to confirm that the hon. Gentleman misheard me. I said that they are serious offences. I am grateful that he has given me the opportunity to clarify that.

There is, however, scant detail in the Government’s impact assessment on the case for extending the sentences for those offences. Currently, keeping a brothel for prostitution—a serious offence that can carry many aggravating factors, such as intimidation, abduction and detention—carries a maximum sentence of seven years; raising that to life imprisonment is a significant increase. As I made clear, we are not opposed to that in principle, but could we have some additional information? How many people, on average, are convicted of the offence; what is the average custodial term of those sentences; and what evidence convinced the Government of the need for the increases?

The Government’s impact assessment acknowledges that the changes to sentencing in part 1 will result in an increase in the prison population of about 1,000 places. It also specifies that there would be demand for 300 of those additional prison places by as soon as March 2020. A number of reforms are contributing to that, and I am sure we will return to the point when debating other clauses, but will the Minister say how many of the additional prison places, if any, relate to the proposed changes to these offences? I should be grateful for that and any other clarification he can provide. I hope that will allow us not to object to the clause standing part of the Bill.

Jeremy Wright (Conservative, Kenilworth and Southam)

The majority of the impact on prison places and on Parole Board hearings arises from clauses 4 and 5. I do not expect clause 2 to have much impact, if any, in that respect. I should explain that we are not increasing the maximum sentence to life imprisonment for the brothel-keeping offence under the Sexual Offences Act 1956. That is a technical change to repair a mistake made in the schedule. The hon. Gentleman will appreciate that the sentences for the other offences covered in the clause are already lengthy, and for aiding and abetting murder, for example, a life sentence is already available. I hope that assists him.

Clause 3 - Schedule 15B offences

Dan Jarvis (Labour, Barnsley Central)

I beg to move amendment 8, in clause 3, page 4, line 26, at end insert—

‘(10) Before this section comes into force the Secretary of State shall—

(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and

(b) lay a report before Parliament containing—

(i) his asses sment of the resources required for additional hearings; and

(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 9, in clause 4, page 4, line 39, at end insert—

‘(4) Before this section comes into force the Secretary of State shall—

(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and

(b) lay a report before Parliament containing—

(i) his assessment of the resources required for additional hearings; and

(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.’.

Amendment 10, in clause 5, page 5, line 12, at end insert—

‘(3) Before this section comes into force the Secretary of State shall—

(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and

(b) lay a report before Parliament containing—

(i) his assessment of the resources required for additional hearings; and

(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.’.

Amendment 11, in clause 7, page 9, line 26, at end insert—

‘(9) Before this section comes into force the Secretary of State shall—

(a) consult the Parole Board about the resources required for additional hearings resulting from the implementation of this section; and

(b) lay a report before Parliament containing—

(i) his assessment of the resources required for additional hearings; and

(ii) his plans to ensure that the Parole Board has adequate resources to fulfil the requirements of this section effectively.’.

Dan Jarvis (Labour, Barnsley Central)

The amendments, which stand in my name and that of my hon. Friend the Member for Hammersmith and which arise from one of the Opposition’s biggest concerns about the proposals in part 1, would require the Secretary of State to consult the Parole Board about the changes he is proposing in clauses 3, 4, 5 and 7. They would also oblige him to lay a report before Parliament detailing his assessment of what the Parole Board will need if it is to carry out the additional hearings likely to result from the changes, and his plans to ensure proper resources.

Before I discuss their merits, let me summarise the extra demands these clauses will place on the Parole Board. Clause 3 adds to the list of dangerous offenders detailed in schedule 15B to the Criminal Justice Act 2003; that group of offenders can be released from custody only on the Parole Board’s recommendation. Clause 4 would end automatic release at the two-thirds point in a custodial term for everyone serving an extended determinate sentence, and require release to be directed instead by the Parole Board. Clause 5 and schedule 1 end automatic release at the halfway point in a custodial term for a number of offenders serving time for a range of serious offences; those offenders will instead be subject to discretionary release by the Parole Board. Clause 7 introduces a new statutory release test for recalled offenders, again to be conducted by, yes, the Parole Board.

There will clearly be a greater burden for the Parole Board to bear. The Government accept that in the impact assessment; they estimate that there will be at least 1,100 extra Parole Board hearings due to the provisions in clauses 1 to 5 and schedule 1. It is important to note that that estimate does not extend to the potential impact of clause 7, but it is vital that we understand the wider pressures that the Parole Board has to endure. Its work load is rising but its staff numbers are falling: nearly one in five staff have been cut since the last election, many of them vital support staff to the 232 Parole Board members who are paid per hearing. Those staff left are having to clear a backlog of roughly 1,400 outstanding cases and cope with the ramifications of a recent judgment by the Supreme Court.

The Osborn, Booth and Reilly ruling last October requires the Parole Board to hold more oral hearings, which are deemed to be fairer than paper-based hearings. The Parole Board’s chief executive, Claire Bassett, recently told a meeting of the all-party penal affairs group that the ruling has huge implications for her organisation, and she forecast that the number of oral hearings would jump from about 4,500 a year to as many as 14,000. There has already been a surge in oral hearings, and many are now taking place via video link from the Parole Board’s headquarters in London to prisons around the country. The system has been dogged by computer glitches and technical problems. The Independent on Sundayrecently reported a solicitor saying that two of his clients had had their hearings postponed by up to four months because video technology had broken down on the day. The solicitor described the Parole Board as inundated and close to crisis.

These concerns have been echoed by the Parole Board’s chairman, Sir David Calvert-Smith. He told the Justice Select Committee in December:

“all bets are off now until we sort out the consequences of Osborn. There are bound to be delays in the short term.”

He also said that what had traditionally been three people on any one hearing panel might have to be reduced to two or even one. That all adds up to a deeply worrying picture of a system very close to, if not already at, breaking point. The Committee would not be doing its job if we did not ask Ministers for greater clarity on how the Parole Board will be resourced to meet the additional demands the Bill places on it. The impact assessment estimates an additional 50 hearings will be required by 2016 and a further 400 before March 2020. Has the Department factored the implications of the Osborn ruling into these estimates?

What are the Minister’s thoughts on clause 7 as it links to amendment 11? We are skipping ahead of ourselves, but the impact assessment suggests that the introduction of a new recall test will have a minimal impact on the Parole Board and the size of the recalled prison population. Overall, it estimates this policy will affect only an additional 75 offenders a year, requiring 50 prison places at a cost of £1.5 million a year. The Prison Reform Trust and others have called that an unrealistically low estimate in the light of previous experience. Will the Minister say whether that will be the full extent of the impact, and will he clarify how many Parole Board hearings the changes in clause 7 will require?

In proposing these amendments, I hope we can probe the Government into going a little further in laying out what steps they will be taking to ensure that the Parole Board properly understands what the Bill asks of it. The Minister will appreciate the seriousness of this matter: delays in getting a parole hearing also have an impact on the courses and treatments people need and create a need for more prison places. The Opposition are not opposed to automatic release in principle, but a Parole Board pushed into bad decision making because it is under-resourced and overstretched is arguably a much worse prospect.

Jeremy Wright (Conservative, Kenilworth and Southam)

As the hon. Gentleman made clear, the amendments relate to four clauses that he believes will increase pressure on the Parole Board—clauses 3, 4, 5 and 7—and he set out what each one does.

As I said a little earlier, it is estimated that clauses 4 and 5 will add to the Parole Board’s work load, and as the hon. Gentleman pointed out, we said so in our impact assessment. We do not think that the effects of clause 7 will be very significant, given the overall numbers of standard recalls currently processed by the board, and the effects of clause 3 should be negligible, as few offenders are convicted of the relevant offences. However, as the hon. Gentleman would expect, we have carefully considered the Bill’s impact and the timing of that impact on the board, and we have taken them into account.

We are confident that the measures will not place unmanageable demands on the board. We have not underplayed the impact or the period during which the impact will be felt. The new determinate sentence, which will form the majority of the increase in the Parole Board’s work load, will apply only to those who are sentenced after the date of commencement. Those offenders, because of the nature of their offences, may receive long sentences; they will have to serve half the custodial term in prison before they can be considered for release by the Parole Board—in other words, it will take quite some time before the first of these cases will start to filter through to the board, and we have taken account of that. As we have said, it is likely to be between 2020 and 2030 before we see the board feeling the full impact of the changes to early release.

Of course, action needs to be taken and is being taken now on the challenges facing the board following the Osborn judgment, and to ensure that measures are in place to deal with the increase in oral hearings and to avoid the build-up of a backlog. Those measures, including a new operating model that the board is currently developing, will be in place well before the impact of the new sentence set out in the Bill is felt. Also, it must be remembered that this change comes in the context of the number of IPP cases going before the board continuing to decrease over time, as those prisoners are released.

Finally, I should remind the Committee that potential changes to the demands on arm’s length bodies are not unheard of; indeed, they are a frequent occurrence. There are governance structures already set up to ensure that new pressures on the Parole Board are taken account of and to ensure that the board will be consulted in the course of budgetary allocation decisions. As hon. Members will be aware, the Ministry of Justice is held accountable to Parliament for the discharge of its responsibilities and the Parole Board itself reports annually to Parliament. Going into such detail in the Bill itself would not add anything to current governance structures.

For that reason, although I entirely understand the hon. Gentleman’s concern about these matters, I ask him to withdraw his amendment.

Dan Jarvis (Labour, Barnsley Central)

Given the assurances we have received from the Minister, I beg to ask leave to withdraw the amendment.

Schedule 1 - Sentence and Parole Board release for offenders of particular concern

Sarah Champion (Labour, Rotherham)

I beg to move amendment 6, in schedule 1, page 63, line 18, leave out ‘13’ and insert ‘16’.

David Crausby (Labour, Bolton North East)

With this, it will be convenient to discuss amendment 7, in schedule 1, page 63, line 19, leave out ‘13’ and insert ‘16’.

Sarah Champion (Labour, Rotherham)

It is a pleasure to serve under your chairmanship, Mr Crausby.

The amendments are very much probing in nature and are designed to get some clarification from the Minister. Paragraph 19 refers to:

“An offence under section 5 of the Sexual Offences Act 2003 (rape of a child under 13).”

Paragraph 20 refers to:

“An offence under section 6 of that Act (assault of a child under 13 by penetration).”

My underlying question is: why is the age specified 13 rather than 16, which is the age of consent? I have been doing a lot of work with Barnardo’s and we assume we know the reason why, but we want clarity. I could not rest if we missed an anomaly.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am grateful to the hon. Lady for her fair question. I will try to deal with the points she has raised. The amendments would widen the scope of the new determinate sentence we are proposing for offenders of particular concern. The sentence involves Parole Board early release rather than automatic early release. We have applied our proposals to two specific offences set out in the Sexual Offences Act 2003: rape of a child under 13 and assault by penetration of a child under 13. I have already explained that we think that automatic early release is wrong in principle for serious offending; however, we must recognise that at this point there are practical limitations on resources. We have had to start somewhere and we have had to be selective.

I appreciate that the amendments are probing, but they are defective because the Bill refers to specific offences under sections 5 and 6 of the 2003 Act, which relate to offending against under-13s. The 2003 Act does not have corresponding offences of rape or assault by penetration specifically against under-16s. The amendments would not change the offences to which the Bill refers, only the ages, so they would not have the intended effect.

As the hon. Lady will know, the 2003 Act radically reformed the hierarchy of sexual offences and updated the previously rather Victorian framework. Key concepts of that reform were that there was a particularly serious aspect to offending against children under 13 and that the consent of children of that age was legally immaterial. That is why the 2003 Act sets out specific versions of key non-consensual sexual offences relating to victims under 13. There is no requirement to show that there was no consent in those circumstances. The distinction reflects what is known as “ostensible consent”, which recognises that although legally a young person between 13 and 16 cannot consent to sexual activity, socially the circumstances of such activity would not in all cases give rise to the same public protection issues as sexual activity where younger children were involved.

There are offences in the 2003 Act that deal with offending against under-16s, but those are not the most serious offences, which are the ones we selected to form part of the new scheme. The 2003 Act was drafted after much consideration and consultation, as the hon. Lady might know. We think that the singling out of offending against victims under 13 is sound and I do not want to unpick those reforms.

Of course, that does not mean that there is no appropriate punishment for those who offend against children under 16. Tough sentences, including life in the most serious cases, are available for the same offending committed against under-16s, and sentencing guidelines oblige courts to sentence more robustly where victims are particularly young and vulnerable. The offences of rape and assault by penetration are subject to the enhanced dangerous offenders sentencing scheme, which means that offenders may receive an extended determinate sentence, under which only the Parole Board can approve early release, where the court thinks that they present a substantial risk of reoffending. The offender might also face an automatic life sentence if they commit a second very serious offence included in the scheme.

Although I sympathise entirely with what the hon. Lady is trying to achieve, I cannot accept the amendments. As I have explained, they would be inconsistent with the basis of our sexual offences framework. They are also impractical in the current financial climate. She and I would agree that it is sensible to look again at the issue, as and when we can, but at this stage I ask her to withdraw her amendment.

Sarah Champion (Labour, Rotherham)

I could argue with the Minister that a child cannot give informed consent, but I accept his argument about under-13s. I beg to ask leave to withdraw the amendment.

Jeremy Wright (Conservative, Kenilworth and Southam)

I beg to move amendment 2, in schedule 1, page 66, line 20, at end insert—

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss Government amendment 3.

Jeremy Wright (Conservative, Kenilworth and Southam)

Amendments 2 and 3 are minor and technical consequential amendments to the Road Traffic Offenders Act 1988, and the Powers of Criminal Courts (Sentencing) Act 2000.

Clause 5 and schedule 1 create a new custodial sentence for those convicted of offences of particular concern, which are listed in new schedule 18A to the Criminal Justice Act 2003, as inserted by schedule 1. The new custodial sentence involves a custodial term and a year’s licence period. The offender is eligible to be considered by the Parole Board for release from the halfway point of the custodial term.

The provisions in the 1988 and 2000 Acts relate to a duty on the court to impose longer driving bans on offenders who receive a driving ban and a custodial sentence on the same occasion. The purpose of the statute is to ensure that the driving ban will remain in force for an appropriate period after the offender’s release, as driving bans run from the beginning of a sentence. The amendments replicate the provision made for other types of custodial sentence in the driving ban legislation. They provide that the court should calculate by how much to increase the driving ban with reference to the potential earliest release point for those sentences.

Julian Huppert (Liberal Democrat, Cambridge)

What is proposed is a sensible step. There have been several cases where people who have accumulated a large number of points on their licences do not get driving bans, because they say that there are exceptional circumstances. The record is something like 30 or 40. Will the Minister assure the Committee that similar exceptional circumstances will not arise in the cases covered by the amendment? Is he doing anything to solve the general problem?

Jeremy Wright (Conservative, Kenilworth and Southam)

My hon. Friend invites me to go slightly beyond the scope of the Bill, as he appreciates. I can say, first, that the amendments deal with the length of a driving ban imposed at the point of sentencing. He is right that in the case of accumulated penalty points there is an opportunity for the sentencing bench to determine that exceptional circumstances exist. I am sure that my hon. Friend accepts that it cannot be for a Minister to determine what those are; it is for the bench to do so on every occasion, based on the merits of the case.

In relation to the broader point about whether we are looking at the matter again, the answer is yes.

Dr Huppert rose—

Robert Buckland (Conservative, South Swindon)

Is it not right that mere hardship is not enough? Exceptional hardship is necessary in the case of totting-up offences.

In the Bill, are the disqualifications that we are concerned with obligatory, or are discretionary disqualifications included too? The point that has been made is important. A three-year driving ban can be meaningless if the defendant is serving a prison sentence, and the public are rightly concerned about that.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am grateful for my hon. Friend’s first point. He speaks with the experience of someone who, occasionally, sentences. I am sure that the Committee is grateful for his experience.

My hon. Friend is also right about the fact that the provisions we are debating refer to discretionary as well as compulsory disqualification. I also agree with him that it clearly would not be right for a driving ban to be eaten up entirely by a period spent in custody. That would defeat the object of the ban. We are keen for the sentencer in every case to take account of the period that will be served with no opportunity for driving, and to ensure that there will be an appropriate period thereafter covered by a driving ban. We hope that the amendments will achieve that, at least in part. My hon. Friend the Member for Cambridge looks content, so I shall leave it at that.

Dan Jarvis (Labour, Barnsley Central)

I thank the Minister for explaining the detail. As he said, the amendments are consequential on the creation of a new offence in clause 5, and they ensure that a driving ban can be extended when a custodial sentence is imposed. The change seems to be a technical, sensible and necessary one, and we have no objection to the amendments.

Jeremy Wright (Conservative, Kenilworth and Southam)

I do not think that I need say any more, Mr Crausby.

Clause 6 - Electronic monitoring following release on licence etc

Dan Jarvis (Labour, Barnsley Central)

I beg to move amendment 15, in clause 6, page 5, leave out from line 36 to line 25 on page 6.

Amendment 15 stands in my name and that of my hon. Friend the Member for Hammersmith. Let me say at the outset that the Opposition are in favour of electronic monitoring. If done in the right way and combined with good quality supervision, it can be an effective tool for greater public safety and for rehabilitating offenders. As technology develops, it makes sense for us to make full use of the latest advances. With that said, however, the Committee will be aware of the recent news of the £214 million being repaid to the taxpayer by Serco and G4S following the recent monitoring scandal, which serves as the clearest possible reminder that this area needs to be managed with caution and subjected to the right level of public scrutiny.

Sarah Champion (Labour, Rotherham)

I am grateful that my hon. Friend brings up the false accounting, but I would like to highlight an example from Rotherham where an offender was out on release with an electronic tag that did not work. He did not realise for three months that the tag was not working, but the placebo effect worked and he kept to the terms of his release; however, the authorities would have been none the wiser had he breached them. We therefore need quite considerable investment to make a scheme such as this work.

Dan Jarvis (Labour, Barnsley Central)

I am grateful to my hon. Friend for that timely intervention, which serves as a reminder that such issues require close scrutiny and detailed debate. I therefore hope that amendment 15 will afford Ministers the opportunity to address two significant issues with the clause. First, there is a significant lack of important detail on and supporting evidence for the measure. Secondly, many questions remain as to how the power will be exercised and whether it is required in the first place.

The problem concerning evidence is well demonstrated by the Government’s impact assessment, which makes it clear that the new electronic monitoring condition will come with a range of costs, including equipment and hardware costs for multi-purpose ankle tags, monitoring, network provision, equipment failure, offender managers having to deal with breaches, police enforcement, additional prison places resulting from improved detection rates and breaches of licence conditions and other criminal justice costs associated with investigating further offending. Having detailed that comprehensive list of costs, the impact assessment then states:

“We are not able to quantify costs associated with the implementation of electronic monitoring at this stage”.

It goes on to note that the private sector procurement process is still ongoing and that electronic monitoring is not currently in widespread use across England and Wales.

Sarah Champion (Labour, Rotherham)

My hon. Friend hits the nail on the head. We are asked to make a judgment on the proposal, but no costs have been provided on which we can make that judgment. Given the costs of making such an extensive system actually work, I contend that the investment might be better spent on rehabilitation or health issues. We cannot make an informed decision because the costs are not in front of us.

Dan Jarvis (Labour, Barnsley Central)

I am again grateful to my hon. Friend. I hope that our debate in Committee on the issue will be constructive and useful and give the Minister the opportunity to provide more detail on what are legitimate questions. As I said, we support electronic monitoring in general, but it is important that we take the opportunity to satisfy ourselves that the decisions and the policy proposals in the Bill are underpinned by evidence.

The Government’s impact assessment also states:

“Though benefits likely to arise from the increased use of ELM have been identified, we are not able to quantify these benefits at this stage, as ELM is not yet in widespread use in England and Wales. As such, we are unable to calculate impact.”

I hope the Minister will understand that that leaves the Committee in a rather difficult position. We are being asked to approve legislation that will deliver, possibly, benefits, but we do not know what, and that will definitely come at substantial cost, but we do not know how much.

The impact assessment outlines four significant risks associated with the proposals on electronic monitoring. First, the technology may not be able reliably to deliver the required service at a cost that represents the anticipated value for money. Secondly, the use of monitoring may fail to provide the expected level of deterrent effect. Thirdly, there may be an additional burden on the criminal justice system, as the volume of offences likely to be detected by monitoring that would previously have gone undetected, is unknown. Finally, the new licence conditions associated with monitoring may lead to an increase in breaches and, as a result, prison places. Again, however, the impact assessment admits that the number of additional prison places required “cannot be accurately estimated”.

It should also be noted that much of the impact assessment relies on studies carried out in 2004, 2005 and 2007. However good those studies were, many people may express surprise that there is no more recent evidence to support a proposal that hinges on the use of the latest cutting-edge technology. There are also issues with the consultation paper. Even the House of Commons Library’s research paper accompanying the Bill acknowledges that the consultation paper published alongside the Government’s announcement of GPS monitoring last May did not discuss electronic monitoring in any detail.

That consultation also said that the Government were working with the Information Commissioner to develop a code of practice for monitoring. I think most members of the Committee would agree that that is a positive step, but in an answer to a parliamentary question on 4 March, the Minister was unable to provide any further detail on how that was progressing, or when the code would be published for parliamentary scrutiny. I would therefore be grateful if he provided further information on the matter in his response.

There is also the question of how the policy will apply in practice. As it stands, clause 6 will allow for a mandatory electronic monitoring condition to apply to offenders released from custody on licence. That contrasts with the discretionary condition under the current law. Importantly, the current law already allows for the electronic monitoring of offenders released on licence. Those powers are contained in the Criminal Justice and Court Services Act 2000.

The Committee will also remember the testimony that we heard from Justice’s Angela Patrick during our evidence sessions. She was clear that “these powers exist”. If a judge wishes to tag an offender, they can do so on a discretionary, case-by-case basis. That raises questions as to whether the blanket approach outlined in subsection (3) is necessary. In selecting entire groups of offenders for monitoring, it is important that we do not prevent offenders’ individual risks and circumstances from being taken into account. I know that everyone on the Committee will be eager to limit the potential for mandatory electronic monitoring to be used where it would be wholly inappropriate, such as where there is a risk of domestic violence, for example. Although there are some mechanisms to safeguard against inappropriate use, they are currently vague and rely on just a couple of illustrative examples in the explanatory notes. Any assurances the Minister can offer on safeguards would therefore be most welcome.

Sarah Champion (Labour, Rotherham)

My hon. Friend mentions domestic violence, and I draw the Committee’s attention to written evidence from the Criminal Justice Alliance. Although it recognises the benefits that electronic tagging can have, it cautions that we should not assume that all offences will be captured, saying:

“Electronic tagging only monitors an individual’s whereabouts and not their actions. Thus, criminal behaviour, such as drug dealing or handling stolen goods, may be brought into the family home, impacting on everyone living there, if offenders know their whereabouts are subject to surveillance. Also, whether an offender is a perpetrator of domestic violence must be considered before confining him or her for long periods at home under a curfew monitored by electronic tagging.”

I caution the Minister against seeing tagging as a catch-all for everyone, as we still need support in place. The last time that I was in Committee with the Minister, we were talking about the probation service, and I urge him to consider, alongside electronic tagging, the rehabilitation for offenders that the probation service can provide.

Dan Jarvis (Labour, Barnsley Central)

I am grateful to my hon. Friend for that intervention. She makes an incredibly important point and I look forward to hearing the Minister’s response to it.

It should be noted that clause 6 allows the Secretary of State to determine, by order, the groups of offenders to which the measure will apply, which gives Parliament limited opportunity to scrutinise that important condition. Proposed new section 62A(3)(b) of the 2000 Act, which our amendment would delete, will make it possible to require people to be monitored electronically “on a sampling basis”, which could mean that even those outside the groups defined by the Secretary of State might be subject to monitoring, irrespective of the risk that they pose or the discretion of trained practitioners. That would represent a significant precedent, even if the intention was only to conduct research.

I remember the powerful arguments made on Second Reading by the former Minister for Policing and Criminal Justice, the right hon. Member for Arundel and South Downs (Nick Herbert), and the hon. Member for Hexham, both of whom were in favour of greater involvement by local communities and police and crime commissioners in the use of new technology. That point is good and laudable, but it might run counter to the Bill’s provisions, which will centralise decision making to the Secretary of State.

We hope that the debate on the amendment will allow us to probe the proposals and extract further information about how they will work in practice. No one doubts that electronic monitoring, in one form or another, will be an important tool for the criminal justice system, but how that will be done, how much it will cost, to whom it will apply and what impact it will have are important questions. We will be grateful for any assurances that the Minister can provide.

Julian Huppert (Liberal Democrat, Cambridge)

It is a pleasure to serve under your chairmanship, Mr Crausby. I do not want to repeat all the comments that I made about this issue on Second Reading, but it would be useful to hear more from the Minister to reassure me and many others. I share many of the concerns raised by the shadow Minister and it would be helpful to have clarity so that we can resolve a number of them. There is an awful saga with regard to such things as overcharging.

There are two specific issues on which I would be grateful for the Minister’s clarification, one of which I raised on Second Reading: the evidential use of the tags. My understanding is that there are numerous cases in which prosecutions based on tag evidence have not been successful because expert witnesses have demonstrated that one cannot be sure that they are reliable. People such as Professor Ross Anderson from my constituency has been an expert witness in such cases. Clearly, it is not helpful if the tags simply will not stand up in court. There might be a placebo effect, but there will not be the desired success rates. Will the Minister clarify whether there are improvements, what the evidential status is and how sure he is of successful prosecutions when someone has breached carrying a tag?

May I also press the Minister to say more about proposed new section 62(5A)(b) of the 2000 Act in clause 6(2)(b)—I apologise for the complex naming—which refers to

“electronic monitoring of the person’s whereabouts (other than for the purpose of monitoring compliance with another condition of release)”?

I understand the logic of monitoring whether people are doing what they have been told that they must do, but monitoring something that they have not been told they must do is another step. I have heard suggestions that this is about their ability to prove that they were not involved with another crime or activity, but how will the data be stored? Many concerns have recently arisen about what happens to Government-held data. Who will have access to the data and for what purposes? Will the data be subject to constraints similar to those under the Regulation of Investigatory Powers Act 2000 or to more serious ones? How will everything be dealt with? We do not want a massive database logging where more and more people are at all times, as that goes a lot further than trying to ensure that someone complies with a curfew.

Yasmin Qureshi (Labour, Bolton South East)

Does the Minister think it is appropriate to have a rule stating that every single person released should have electronic monitoring tagging? Judges should retain an element of discretion when they are sentencing because not every case will justify tagging. It is appropriate to leave the determination to the judge or magistrate in each case in light of the circumstances of a particular individual—his or her previous history and track record, what they have been doing, and the offence they have been convicted of, including the manner and method of the offence, and who the victim is. Those can be important factors in determining whether electronic tagging is needed, or if ordinary conditions can be attached and kept.

Robert Buckland (Conservative, South Swindon)

The hon. Lady makes an interesting point, but as I read the clause, the conditions under subsection (2) following release on licence and so on “may” include electronic monitoring. I note, too, that there is a requirement that there “must” be

“provision for making a person responsible for the monitoring”,

so is there not a degree of discretion in the Bill?

Yasmin Qureshi (Labour, Bolton South East)

My point is about the ambiguous nature of the Bill. If it stated that, when giving conditions, one of the things to be considered would be electronic monitoring, that would be fine. I stand to be corrected, but the Bill’s drafting does not seem to state that. As I understand it, the Bill does not provide for proper discretion. Judges and magistrates should be able to decide in any particular case whether someone should have electronic monitoring because, to repeat myself, not everyone will need it.

Secondly, I want to touch on the impracticalities. As someone who spent many years not only prosecuting but defending, I have a reasonable knowledge of the criminal justice system, and whenever electronic tagging has been used, the case has been difficult to prove in court. A whole lot of evidence is needed and the process costs a lot of money and takes up a lot of time. Of course, the defendant will normally be represented, so the process takes up court time, which means lawyers, prosecutors and judges. Often, at the end of the case, we have acquittals because it was argued that the technology was weak, or that a breach was inadvertent, so the courts are minded not to deal with it. I therefore wonder about the whole approach.

Technology can be good, but I am not sure whether using it in so many cases will be helpful in dealing with mischief as intended, or that all the money and effort will be necessary. The costs are for not only investigation and detection, but getting to court and the hours of court time, after which little is obtained. I remember dealing with breaches of bail and the wholesale problems involved in such cases. I am not an expert, but as someone who has been involved in the criminal justice system, I wonder how much value such electronic systems have.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am grateful to Committee members for the debate and I will try to pick up on their points.

The hon. Member for Barnsley Central made it clear that his amendment would remove from the Bill provisions that would allow compulsory electronic monitoring conditions to be imposed on offenders on release from custody. As he recognises, electronic location monitoring is important for many reasons. It is important that we take advantage of developments in technology to monitor and manage offenders effectively. Having the means to monitor an offender’s whereabouts will help us to enforce exclusion zones and therefore give better protection to victims. Location monitoring should also act as a deterrent to further offending.

Andrew Slaughter (Labour, Hammersmith)

The Minister puts his finger on the problem. The means are available because technology has advanced substantially so, rather unthinkingly, the Government have taken a blanket approach. There is a twin problem of extending not just the extent but the role of monitoring—it is now location, rather than enforcement monitoring—and, to try to mitigate that, the power to control when monitoring is used is being put in the hands of the Secretary of State, which also has a downside. Does not the Minister think that he is rather rushing ahead with the white heat of technology?

Jeremy Wright (Conservative, Kenilworth and Southam)

I try not to do anything unthinkingly, and much less to rush ahead, but it is important that we take advantage of what the new technology can offer. If we are now able to track an offender’s movements and be clear about where there are, rather than simply where they are not—that is all that existing monitoring technology permits us to know—we have scope to do more to protect victims and to deter further crime. The hon. Gentleman is right that it is important to have safeguards, but it is also important that we do not miss the opportunity that the new technology will give us.

Andrew Slaughter (Labour, Hammersmith)

I should like to clarify my first point. Does the Minister accept that what he is doing is quantitatively and qualitatively different? Monitoring location is a different approach to tagging than simply trying to enforce conditions that the court may have laid down. If he accepts that, what is his considered position about why the change would come about?

Jeremy Wright (Conservative, Kenilworth and Southam)

There are two points to make. First, the hon. Gentleman will recognise that the ability to monitor whereabouts already exists in criminal law. It is not the case that there is only the right to impose a monitoring condition for the enforcement of other conditions; it is also possible to impose a monitoring condition as a stand-alone condition.

Secondly, we are talking about people moving from a custodial part of their sentence on to the period of licence, so we have every right to have some control over their movements and to know where they are. These are not general members of the public who have done nothing wrong; they are people who have already been convicted of an offence and are still subject to the rules that apply to that sentence during their period of licence. We should not lose sight of that.

Mike Kane (Labour, Wythenshawe and Sale East)

Sir Peter Fahy, the chief constable of Greater Manchester, said recently that it would be cheaper to put a constable in each problem family’s front room than it would be to have criminal and judicial systems. As the Ministry of Justice has had a £23 million clawback from G4S, according to the National Audit Office report of last November, does not the Minister think that there is room for experimentation?

Jeremy Wright (Conservative, Kenilworth and Southam)

To some extent, of course, what we are discussing does permit trialling or piloting various approaches with the new technology that we have available. If the hon. Gentleman looks carefully at the clause, he will see that there is an opportunity to do precisely what he suggests. I am also grateful for his endorsement of and support for the approach taken by the troubled families programme, a fine coalition initiative that does exactly what he is describing by looking at troubled families in the round. That is a sensible way of engaging with Government policy, so he is absolutely right about that matter.

Guy Opperman (Conservative, Hexham)

The Minister makes a fair point. I endorse his argument about the troubled families programme because that is clearly a good step to build on what the previous Government did. I have two simple points. First, is it not right that the process by which we do electronic tagging will save the taxpayer money, thus allowing us to spend the Ministry of Justice’s budget on the things that we really want to spend it on, such as rehabilitation? Secondly, is there not evidence that taking someone out of prison and tagging them enhances and improves the likelihood of rehabilitation and retraining and, therefore, the likelihood of them not reoffending?

Jeremy Wright (Conservative, Kenilworth and Southam)

My hon. Friend is right on both counts. When we consider the costs that may be incurred by this programme or any variant of it, it is necessary to consider the money that would be saved by the avoidance of further offending. There is a real deterrent effect. It is common sense: if someone has a tag around their ankle that they know will detect their whereabouts, it not a good idea for them to go out and burgle a house or commit any other offence.

In every calculation of what we think the measures might cost, we have to think about what they may save. As my hon. Friend well knows, the cost of crime is not simply financial. It has a human cost as well, and we have an obligation to look at every possible way to reduce the rates of reoffending. As he knows, that is at the heart of many of the things we are trying to do in the Ministry of Justice at the moment.

Let me respond to some of the points that have been made during the debate. Location monitoring should also act as a deterrent to further offending, as I have said. The advantage of the new technology we are discussing is that the offender will know that he or she can be placed at the scene of a crime. Any breach of the licence condition, such as the removal or attempted removal of the tag, will raise an alert and the offender can be recalled to custody if appropriate. The information gathered can be shared with the police, making the investigation of crimes more efficient. As my hon. Friend the Member for Cambridge said, we will be able to rule offenders in or out of investigations more quickly. The code of practice for data sharing will ensure that safeguards are in place concerning the management of information.

Valerie Vaz (Labour, Walsall South)

Clause 6(3) will insert new section 62B into the Criminal Justice and Court Services Act 2000. That provision refers to the issuing of a code of practice. What position has the Minister reached in his discussions on the code of practice with the Information Commissioner, and when is it likely to be published?

Jeremy Wright (Conservative, Kenilworth and Southam)

I cannot give the hon. Lady a date, but she is right that consultation with the Information Commissioner is important. We will have that consultation when drawing up the code of practice, which will be important guidance on some of the matters we have already spent time discussing.

Location monitoring is an important element of our strategy to improve public protection, reduce reoffending, as I said in answer to my hon. Friend the Member for Hexham, and assist in the successful detection and prosecution of crime. Clause 6 provides for compulsory electronic monitoring conditions to apply to offenders who are released from custody subject to conditions—for example, on licence. The electronic monitoring condition may be for the monitoring of compliance with another condition. As I said to the hon. Member for Hammersmith, it could also be for the monitoring of whereabouts as a stand-alone condition. As I say—going back to a point raised by my hon. Friend the Member for Cambridge— that is already part of law. We would apply those provisions to those who are on licence.

Currently, the legislation provides for those electronic monitoring conditions to be imposed on a discretionary basis. However, in practice the available technology has allowed only for the electronic monitoring of a curfew condition. We now have the opportunity to take advantage of technological advances which make it possible to track offenders effectively in the community.

The clause provides flexible order-making powers so that a compulsory condition could be targeted on specified groups of offenders, and the duration of the compulsory condition could be specified if it is to be shorter than the licence period. In answer to the issue raised by the hon. Members for Barnsley Central and for Bolton South East, importantly, it is not the judge who currently decides licence conditions but, effectively, prison governors, on behalf of the Secretary of State.

Robert Buckland (Conservative, South Swindon)

That distinction is important, because we are talking about conditions on licence as opposed to any decision made by the court. It is therefore an Executive power, which is why spelling it out in primary legislation is vitally important. Within that, as my hon. Friend is outlining, there is discretion as to how we now use that power. There is an increased and enhanced potential for using it to monitor certain conditions, as opposed to only residence and curfew. Surely, that must be a welcome initiative and a welcome harnessing of technology.

Jeremy Wright (Conservative, Kenilworth and Southam)

My hon. Friend is right, and I certainly hope that it will be welcome. He is also right that the element of compulsion here applies to the group or groups to which we consider it sensible to apply electronic monitoring. It does not oblige the Secretary of State to apply electronic monitoring to everybody who leaves custody on licence, although he could of course do so if he thought that was the most appropriate use of the power. It should also be said that an order may prescribe which offenders must be subject to compulsory electronic monitoring, either by type of offence or indeed by type of sentence.

The Secretary of State will also be able to specify which offenders will be subject to compulsory electronic monitoring by reference to whoever is monitoring the offender, for example the national probation service. Of course, there may also be random sampling for the purposes of pilots, which goes back to the point made a little earlier by the hon. Member for Rotherham.

It is important that the Secretary of State may also provide for cases in which the compulsory condition should not apply. Earlier, the hon. Member for Rotherham mentioned domestic violence. I should make it clear that we are talking about a compulsory condition for the monitoring of offenders’ whereabouts, not a compulsory curfew condition. I quite understand the concerns that have been expressed about confining someone to their home in certain domestic violence cases, but that is not what we are talking about here. We are talking about monitoring someone’s whereabouts, rather than a compulsory curfew condition.

Sarah Champion (Labour, Rotherham)

On the database, which the Minister briefly mentioned, will he address the point made by the hon. Member for Cambridge about who will own the database, how long the information will be kept, and whether the state alone will have the information? Of course, we have concerns at the moment about databases being sold off.

Jeremy Wright (Conservative, Kenilworth and Southam)

I believe that my hon. Friend the Member for Cambridge is concerned about the evidential requirements that apply to this process, and I will certainly come on to that in a moment. Before I do, let me finish the point I am making about the circumstances in which the Secretary of State may provide for this condition not to apply. For example, there may be cases where he is satisfied that the offender has physical or mental health issues which mean that the condition is unsuitable, or where it is not possible to make arrangements for the offender to recharge the battery in the tag. Indeed, such an issue may have prompted the amendment. I therefore want to stress that taking a power by order to require the condition to be imposed should not lead to its imposition in unsuitable cases. The order can prescribe cases where the condition will not apply.

Returning to the point made by my hon. Friend the Member for South Swindon, there would also be some operational discretion in determining whether an offender’s circumstances meant that he fell into that category of case. For example, there may need to be an assessment of an offender’s physical or mental health issues. The compulsory licence condition may apply to any adult offenders released subject to conditions, and to any young offenders serving a public protection sentence and released subject to conditions. For other sentences, such as detention and training orders, electronic monitoring conditions will remain discretionary. As I have said, the information gathered by electronic location monitoring may be shared with other agencies such as the police, but this will be subject to a code of practice.

I turn now to the point made by my hon. Friend the Member for Cambridge about evidential requirements. He is absolutely right that, as part of the contractual negotiations to find a suitable provider for this equipment, we are concerned to ensure that the evidential requirements that the equipment will need to meet are satisfied. We will not award contracts unless we are satisfied that the equipment both generates the information necessary to prove a case in court, and retains it for the appropriate period. This point was made by the hon. Member for Bolton South East from her own experience, and as she says, it is very important that this equipment generate the necessary evidence to gain convictions in appropriate cases. We must make sure that it does.

At this stage, perhaps it might be helpful to mention that schedule 2 makes consequential amendments relating to these provisions. These include an amendment to enable compulsory electronic monitoring to be imposed on a life sentence prisoner without a recommendation or direction from the Parole Board. The clause therefore provides for a compulsory licence condition, but with powers to apply it flexibly. That will allow us to learn what works best for different offenders, in order to target compulsory electronic monitoring to best effect.

Some concerns have been raised about the cost and reliability of the technology. I cannot give the Committee information about the costs, for two reasons. First, we are in the process of negotiating contracts for providing this equipment, so we cannot be precise about cost. Secondly, because of the discussion we have already had about the circumstances in which the Secretary of State may decide that it is appropriate to impose this condition, we do not yet know the breadth of its use and, therefore, the resulting likely cost.

Valerie Vaz (Labour, Walsall South)

Would that be committed expenditure before or after 2015?

Jeremy Wright (Conservative, Kenilworth and Southam)

With the best will in the world, it is highly unlikely that the provision we are discussing will become effective until 2015, so we are talking about expenditure not in the next financial year but in a period after that. In any event, we would also want to be satisfied that the equipment will be effective and will work as we wish it to before rolling this project out. We are inviting the Committee to approve an order-making power that will enable the Secretary of State to do that when the circumstances are appropriate.

Andrew Slaughter (Labour, Hammersmith)

What the Minister says is quite alarming: that in effect this relationship will be delegated, and will be between the Minister of the day and the private tagging companies. As we have said, the record of those companies is very poor, but so is the Government’s, in that they have been led by these companies into unwise developments, rather than keeping control. Will there be no parliamentary scrutiny? Looking further ahead, is the Minister not concerned that this is going to get out of control?

Jeremy Wright (Conservative, Kenilworth and Southam)

As I have said, decisions on electronic monitoring are already made by the Executive. These are decisions made in relation to those receiving licence conditions by prison governors on behalf of the Secretary of State, not by the judiciary, so there is no change. The hon. Gentleman is absolutely right that it is important in any contractual relationship between Government and private sector providers that we have robust contract management measures, and we are changing contract management substantially within the Ministry of Justice to ensure that we do.

However, the hon. Gentleman would not expect me to miss the opportunity to point out that the electronic monitoring contracts he is talking about, with Serco and G4S, were negotiated by the last Labour Government in 2005, and they were in office for most of the period during which these contracts were apparently abused. I am afraid that this is one of those situations where the Labour Government made a mess and we are obliged to clear it up. This Government discovered the problem, remedied it and are dealing with the contract management aspects that he is concerned about. As for the bad behaviour by those that his Government engaged in contractual relations with, we have not only referred them to the Serious Fraud Office but recovered a substantial amount of taxpayers’ money, too. This is not a record of failure on the part of this Government.

Julian Huppert (Liberal Democrat, Cambridge)

I hope to understand more about the code of practice and how it will be put together. Will the Minister also explain the amendment to section 62B(2) of the Criminal Justice and Court Services Act 2000? It states:

“A failure to observe a code issued under this section does not of itself make a person liable to any criminal or civil proceedings”.

Does that not undermine the role of the Information Commissioner? I hope the Minister will say more about how he will deal with this.

Jeremy Wright (Conservative, Kenilworth and Southam)

My hon. Friend will appreciate there is a good deal of consultation to be done first on the code of practice, and I am sure he will wish to contribute to that process. I want to say very little more about this at the moment, but it is a process that will continue.

Andrew Slaughter (Labour, Hammersmith)

I want the Minister’s normal, sensible answers to my questions. I am afraid that when he does the knockabout, he sometimes loses plausibility.

Whatever the previous practice has been, this is a substantial increase in the ambit of tagging. Whoever was responsible for contract monitoring in the past, we know it has not worked; I am thinking particularly of those companies that have abused their position, perhaps aided and abetted by poor contract management. It is a serious issue that the Minister has to address. At a time when they are paying back hundreds of millions of pounds, he is saying, “Right: we are going massively to extend their competencies in this area.” He needs to take the issue more seriously.

Jeremy Wright (Conservative, Kenilworth and Southam)

We have taken the matter extremely seriously. My point, whether knockabout or not, is entirely based on the facts, as set out most recently by the Chairman of the Public Accounts Committee, who is by no stretch of the imagination a Conservative partisan. That is what has gone on.

The hon. Gentleman is right, however, that this is a serious issue. If we are to get the most out of the technology, as we seek to, we must ensure that contract management is robust. As I said, we recognise that, in relation to the contractual relationships, on these particular occasions the contract management was not sufficiently robust. It needs to be improved and we are making substantial changes to ensure that it is.

The hon. Gentleman will also note that neither G4S nor Serco is a preferred bidder for the electronic monitoring contracts that we are currently negotiating for the new, much more capable ankle tags and the technology that goes with them. It is not that we do not take the matter seriously, but it is important for the Committee to be aware of the history.

Finally, we will not be using the powers provided in these provisions until the technology has been fully tested. We are taking the powers now so that we can make full use of the new technology as soon as it is ready. I hope that in explaining the clause, including the safeguards it provides, I have addressed many of the concerns about how the powers may be used. We must take advantage of any developments that can lead to the better management of offenders in the community and drive down unacceptably high reoffending rates. I ask the hon. Gentleman to withdraw his amendment.

Dan Jarvis (Labour, Barnsley Central)

Our hope in tabling the amendment was that we would be able to probe the proposals and extract further information on how they will work in practice. As I said, no one doubts that electronic monitoring will be an important tool for the criminal justice system, but in determining how this will be done we must be mindful of the previous abuse. How much it will cost, who it will apply to, what impact it will have and, importantly, where it might lead us in the future are all important questions. Clearly, it is right to look at the matter closely, as we have this morning. I ask the Minister to be mindful of the concerns raised by the Committee. We will return to the issue in future, but for now I beg to ask leave to withdraw the amendment.

Dan Jarvis (Labour, Barnsley Central)

I beg to move amendment 37, in clause 6, page 6, line 29, at end insert—

‘(1A) The Code of Practice must include a requirement that a person carrying out electronic monitoring who is not a public authority as defined by section 3 of the Freedom of Information Act 2000 shall provide information in respect of the carrying out of electronic monitoring in the same manner as if they were such a public authority.’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss amendment 38, in schedule 4, page 73, line 25, at end insert—

‘(1A) Where the Secretary of State enters into a contract with another person under paragraph 1(1), and that person is not a public authority for the purposes of section 3 of the Freedom of Information Act 2000, that person shall be designated by the Secretary of State as a public authority for the purposes of that section in relation to that contract.’.

I remind the Committee that this group is about freedom of information provisions as they apply to aspects of the Bill. Members will have the opportunity to debate the detail of secure colleges later.

Dan Jarvis (Labour, Barnsley Central)

I serve notice that, unless sufficient assurances are received, we intend to put the amendments to a vote. [ Interruption. ] Dramatic! I sensed for a moment that there was a higher authority raising a concern about these amendments, but I shall plough on regardless, confident in the knowledge that they are true and right.

Anyone who knows the story of Jajo the rabbit will understand what I am about to say. For those members of the Committee who do not know, Jajo was the pet rabbit successfully registered as a court translator and then booked in for shifts following the Ministry of Justice’s outsourcing of language service contracts. Jajo’s short-lived translation career says less about his talent and much more about the importance of ensuring that public contracts delivered by private providers are properly managed.

As was touched on, Ministers now have to manage another fall-out. Two private providers of electronic monitoring overcharged the taxpayer by millions of pounds for tagging offenders who had died or moved abroad, or who were already back in prison. That underlines the case for the amendments.

Both amendments would seek to bring non-public providers of public services contracted out under the Bill within the scope of the Freedom of Information Act. Amendment 37 relates to clause 6 and the code of practice that would be issued by the Secretary of State on the processing of data related to electronic monitoring. It would require anyone carrying out monitoring related to the clauses to comply with FOI requests in the same way as public bodies do. Amendment 38 relates to schedule 4 and the arrangements for contracting out secure colleges, which are detailed in part 2. It would require anyone contracted to provide a secure college to comply with freedom of information in the same way. Both our proposals are worthy of consideration by the Committee.

We all know that the landscape of how public services are delivered is changing. The Government spend £187 billion on goods and services with third parties each year, about half of which is estimated to be on contracting out services. About half of all spending on public services now ends up in private providers’ hands and more and more private providers are bidding to take on the responsibility and financial rewards that come with large-scale public contracts. As outsourcing is stepped up, more and more information about public services and public money is being pulled out of the public domain. That presents a particular challenge that we must tackle.

As the Information Commissioner told the Justice Committee last year,

“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?”

The rewards that third parties stand to gain need to go hand in hand with the duties of transparency and information sharing. The public should be able to ask about how, and how well, the service they are paying for is being run.

The Freedom of Information Act does provide for supply-chain companies to be considered to be holding information on behalf of a public authority. In practice, however, contracted providers in the justice sector are not subject to anywhere near the same transparency requirements as publicly-run services. Private prisons, for example, are not subject to FOI in the same way as public prisons and the experience of G4S, Serco and others will have influenced many other companies not to be as forthcoming as they might have been. That is why we need to build freedom of information into the contracts that the Government make with third parties.

The Committee will be aware that such an approach was recommended by the Public Accounts Committee in its excellent report published last week. It made the point that many Departments are not providing information on how those contracts work on the grounds of commercial confidentiality. The public will not accept that excuse for much longer.

Let me conclude my remarks by offering the Committee a final quote. Someone once said:

“Information is power. It lets people hold the powerful to account”

and it should be used by them to hold their

“public services to account”.

I agree with the Prime Minister. Two years ago, he spoke about

“the power of transparency”

and

“why we need more of it.”

He also spoke of leading

“the most transparent Government ever.”

Labour has pledged that the next Labour Government will deal with the issue by bringing companies providing public contracts into the scope of FOI legislation.

Freedom of information can be uncomfortable. It can shed light on difficult issues and be problematic for Government Ministers, but that is the point. The Committee has the opportunity today to improve the Bill and to get a head start.

Julian Huppert (Liberal Democrat, Cambridge)

I will not detain the Committee. I share the concern about the lack of FOI for private organisations providing public services. My colleagues and I have expressed concerns about that for many years, and the previous Government were not very good at accepting that. It is good news that the Labour party may undo that error.

Andrew Slaughter (Labour, Hammersmith)

Can the hon. Gentleman say what steps he and the coalition have taken to extend FOI in the past four years?

Julian Huppert (Liberal Democrat, Cambridge)

Not as many as I would like, but we have seen progress in some areas; we did not see any at all when the hon. Gentleman was a Minister. I hope we will see the correct drive. I share the concern that we need transparency when public services are delivered by private companies. They must not be shielded. I look forward to hearing what the Minister has to say, because he has commented on such issues before.

It is important that the matter should be dealt with on a global scale. I think the shadow Minister would agree that the case is broader. I hope to hear from the Minister that there will be more work to look at how the issue can be addressed more generally, rather than just in a specific case. That would probably require amendment of the Freedom of Information Act. That is probably the best way to resolve the issue, rather than tacking it on to this area, but I absolutely share the concerns. I hope we can see more transparency, both from the Government—we are seeing that—and from the private sector as it performs public functions.

Yasmin Qureshi (Labour, Bolton South East)

The Justice Committee, of which I am a member, looked into the Freedom of Information Act and how it has been operating since it was passed many years ago. We spoke to different groups of people, representatives of councils and local authorities, the Information Commissioner and pressure groups. Generally, the view was that the Freedom of Information Act has been a force for good. The thing that people mentioned time and again was the fact that it applies only to public authorities and has a narrow remit in private companies. A lot of concern was expressed about that.

As my hon. Friend the Member for Barnsley Central said, just under £200 billion is being spent by the Government for private companies to carry out public work. The number of outsourcings could increase, especially in the criminal justice system. In the probation service there will be contracting out and privatisation, as well as changes in the criminal justice system in relation to legal aid and suchlike. We have concerns about the criminal justice system and the number of companies that will be carrying out work that the state normally does. It is an important issue.

Will the Minister give us an undertaking for whenever Government money is given to carry out work on behalf of the Government? Local authorities and Government Departments have to provide information, and it should be the same for private companies. At the moment, as the shadow Minister mentioned, the agencies providing some of the public work give some information, but it is not enough.

It is often hard to get information from private companies. It is important for the country that we know where public money is being spent and how private companies respond to such things. We can have party political banter, but freedom of information was introduced many years ago and has been working well. Freedom of information needs to be extended in light of the new circumstances. I ask for a clear commitment from the Government that they will encapsulate that in the Bill. They now have that opportunity; the Labour party has said that, if it was in government, it would certainly do so. The lacunae and the gaps would be addressed by the amendment, which would make it clear exactly how the regime applies. [Interruption.]

David Crausby (Labour, Bolton North East)

I apologise for the background noise. We are looking into the cause.

Jeremy Wright (Conservative, Kenilworth and Southam)

Thank you, Mr Crausby. I hope Jajo the rabbit is not responsible.

As the hon. Member for Barnsley Central said, amendment 37 seeks to introduce a requirement as to the contents of the code of practice that the Secretary of State will issue under proposed new section 62B of the Criminal Justice and Court Services Act 2000, which is to be introduced through clause 6. The Secretary of State would have to include provisions in the code of practice requiring providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act. The aim of the amendment seems essentially to extend the Act to providers of electronic monitoring not already subject to its provisions.

Amendment 38 has the same basic intention in that it seeks to extend the Freedom of Information Act to providers of secure colleges that have entered a contract with the Secretary of State to do so under schedule 4. The approach differs, however, because amendment 38 would extend the Act directly, whereas amendment 37 seeks to extend its obligations through code of practice guidance.

In other words, both amendments would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FOI requests and proactively through publication schemes. Section 5 of the Act already provides a power to extend the Act’s provisions to contractors providing public services. For reasons I will try to outline, the Government do not currently propose to adopt that approach and are adopting an alternative method to ensure transparency. I am aware, however, of the long-standing and serious concerns raised on the position under the Act of private providers of public services. It might help the hon. Member for Hammersmith to know that the Government are committed to, and have taken steps to extend, the Act. More than 100 additional organisations have been included since 2010, and we are considering other ways in which its scope may be widened.

The issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act by the Select Committee on Justice in 2012. I do not know whether the hon. Member for Bolton South East was a member of the Committee of that time, but the Committee rightly issued a reminder that

“the right to access information is crucial to ensuring accountability and transparency for the spending of taxpayers’ money”.

The Committee recommended the use of contractual provisions, rather than the formal extension of the Act, to ensure that transparency and accountability are maintained. In particular, the Committee said:

“We believe that contracts provide a more practical basis for applying…outsourced services than partial designation of commercial companies under section 5 of the Act”.

The Committee also feels that

“the use of contractual terms to protect the right to access information is currently working relatively well.”

The Government’s approach is consistent with that recommended by the Justice Committee.

In addition to information being made available proactively, the Government are taking steps to issue a revised code of practice under section 45 of the Freedom of Information Act to promote transparency on outsourced public services in response to FOI requests. The code of practice will be issued later this year and will promote and encourage the use and enforcement of contractual obligations to ensure that private bodies not subject to the Act provide appropriate assistance where information about outsourced public services is requested from bodies that are subject to the Act.

The Government recognise that only a small amount of information held by private providers is currently often formally subject to the Act. Our code of practice will encourage public authorities to go further, to interpret their freedom of information obligation broadly and to release more information on a voluntary basis, where it would be in the public interest to do so. In the event of non-compliance, it will also be possible for the Information Commissioner to issue and publish a practice recommendation setting out steps that, in his view, the public authority should take to promote conformity with the guidance.

Andrew Slaughter (Labour, Hammersmith)

I seem to remember taking part in the Westminster Hall debate arising out of the Justice Committee’s deliberation and I do not think that it was very happy with the approach that the Government are taking, particularly where they are seeking to restrict freedom of information further. Does the hon. Gentleman accept on the basis of what he has just said that this will not be a level playing field and that the same requirements that apply to public bodies will not apply to private organisations undertaking an effectively identical role? Does he accept that, whatever the merits of his scheme, it does not to far enough and does not address the comments of my hon. Friend the Member for Barnsley Central?

Jeremy Wright (Conservative, Kenilworth and Southam)

The hon. Gentleman will recognise that the organisations we are talking about extending the provisions of the Act to cover vary hugely in size and level of resources. The concern is to draw the appropriate balance between giving correct access to information and not imposing intolerable burdens on organisations, particularly smaller ones. That is the balance that has to be struck. We are looking at ways in which we can continue to make public authorities responsible for supplying information but ensure that it comes from the place where it originated, which may be those other organisations.

Andrew Slaughter (Labour, Hammersmith)

That is a different argument and one that is often tried. It was tried in relation to universities and to the smaller district councils much beloved of the hon. Member for Bromley and Chislehurst. There are already limitations within the Act. There are safeguards for organisations in terms of the amount of time and cost. Why are they not sufficient?

Jeremy Wright (Conservative, Kenilworth and Southam)

As I said, there is a balance to be struck. We attempt to strike that balance correctly with our proposals. If I can explain what we want to do a little more fully, perhaps the hon. Gentleman will be reassured—although frankly I doubt it. There is an opportunity for us to look at the issue in a sensible way with the code of practice. Applying our forthcoming code of practice guidance across the public sector will ensure that transparency and response to freedom of information requests will be maintained in a consistent way. This is preferable—I agree with my hon. Friend the Member for Cambridge—to the more piecemeal approach promoted by amendments 37 and 38.

The success of our own code of practice will be monitored by the Ministry of Justice and the Information Commissioner. We were clear in our response to post-legislative scrutiny of the Freedom of Information Act that, should this approach yield insufficient dividends, we will consider what other steps are necessary. In summary, we are committed to ensuring transparency in relation to all outsourced public services, including electronic monitoring and secure colleges. We are taking steps to ensure that through the code of practice to be issued later this year. On that basis, I invite the hon. Gentleman to withdraw his amendment.

Yasmin Qureshi (Labour, Bolton South East)

The Minister referred to the Select Committee on Justice and its recommendations. As you know, without going into the detail of that discussion, Select Committee recommendations sometimes tend to be compromises. At the time, three issues were in the mind of the Select Committee. First, it did not realise that a legislative opportunity would come so soon in which to put the measure in a more codified way with a clearer legal obligation. Secondly, there was quite a lot of discussion about private companies.

The Select Committee accepted that the Freedom of Information Act should not apply to purely private companies carrying out purely private work; it was not really arguing against that. However, here we have an opportunity to codify once and for all in legislation the provision that the FOIA should apply whenever public money is paid to a private company to carry out work. That would be a fairly straightforward provision. I do not see why we need to go down the complicated route of using a code of practice, putting in a specific provision in a new contract each time something happens. Why can we not just have a general provision that applies to every situation?

Jeremy Wright (Conservative, Kenilworth and Southam)

I was a member of the Justice Committee before the hon. Lady was, so I understand her point that recommendations of the Select Committee are a matter of discussion and compromise. However, they are made on a cross-party basis, and paid all the more attention to for that reason. I quoted directly from the Select Committee’s conclusions in what I said earlier.

On the hon. Lady’s other point, this may be an earlier legislative opportunity than the Select Committee anticipated, but of course, it is only an opportunity in relation to specific policies. Again, I rather agree with the point made earlier by my hon. Friend the Member for Cambridge: there is an argument for addressing the issue, not on a piecemeal basis, but more comprehensively.

The hon. Lady’s final point is that the approach that we have set out—using a code of practice—is inadequate and that a statutory approach should be introduced by amending primary legislation. An initial approach of using a code of practice is a sensible one. She will recognise that amendment 37, tabled by the hon. Member for Barnsley Central, deals with a requirement in a code of practice, not primary legislation. Amendment 38 is different, but in relation to electronic monitoring, on which a number of concerns have been expressed, the hon. Gentleman’s chosen vehicle is a code of practice. The code of practice approach appears to be welcomed by both sides of the Committee.

Dan Jarvis (Labour, Barnsley Central)

I have listened carefully to the Minister’s response. Clearly, we will want to look carefully at the detail of what he has said about a code of practice.

I agree with my hon. Friend the Member for Bolton South-East that the Committee has an opportunity this morning to make progress on redefining the freedom of information. I have heard the Minister’s response to that point, but the reality is that the move would be popular with the public.

There is no doubt that the landscape in which public services are delivered is changing. The Opposition have pledged to reform freedom of information if we are in government from 2015. I am mindful of the Prime Minister’s comments, which I quoted earlier. He said:

“Information is power. It lets people hold the powerful to account”,

and it should be used by them to hold their public services to account.

Mike Kane (Labour, Wythenshawe and Sale East)

Does my hon. Friend agree that, as the contracting out of public services expands, the public’s right to information shrinks?

Dan Jarvis (Labour, Barnsley Central)

I agree absolutely. There is a degree of inevitability that we will see change in the area. The debate is about how we do it, and it is important that we have that debate. We have tabled the amendments partly so that we can take the opportunity to debate such issues.

Andrew Slaughter (Labour, Hammersmith)

There is another point here, which is that the Ministry of Justice is particularly vulnerable on the issue. We have had the privatisation of the probation service and the scandals regarding tagging. We will come to later in the Bill to proposals about the externalisation of the collection of fines and other matters. First, that is going on wholesale in the Department, and secondly, it is defective in many aspects. It is particularly relevant that the Minister should accept that the proposals in the Bill are not sufficient.

Dan Jarvis (Labour, Barnsley Central)

My hon. Friend is right. In the context of the delivery of public services within the Ministry of Justice remit, this is a particularly relevant, timely and important issue. It has been incredibly useful to have the opportunity to debate it owing to the tabling of the amendments.

I mentioned that I was mindful of the Prime Minister’s comments, and I am mindful of the fact that the Justice Secretary has also indicated a desire to reform freedom of information. Given that there is a general acknowledgment that the status quo is not acceptable and despite what the Minister has said in response to our amendment, I will press it to a vote.

Clause 10 - Offence of remaining unlawfully at large after recall

Dan Jarvis (Labour, Barnsley Central)

I beg to move amendment 13, in clause 10, page 10, line 29, after ‘fails’, insert ‘deliberately and’.

The amendment, which stands in my name and that of my hon. Friend the Member for Hammersmith, is a minor amendment that would make a significant difference to the most vulnerable offenders in the criminal justice system. The Committee will be aware that clause 10 introduces a new statutory offence of remaining unlawfully at large after recall to custody. Those found guilty will be sentenced to a fine and/or a period in custody of up to one year or two years, depending on whether the offender is tried in a Crown court or a magistrates court.

I am sure that most people would accept that, where someone knowingly ignores calls and letters informing them that they need to report to custody and deliberately does all they can to evade the authorities, that should carry some penalty. However, the amendment is intended to introduce appropriate safeguards for those who may fall victim to this offence through quite different circumstances. It would allow a distinction to be made between people who wilfully abscond following a recall and those who may not understand or be aware that they are required to return to custody. That is particularly relevant to offenders suffering from mental health issues, learning difficulties or other, social problems, such as homelessness. The Committee will be aware of how prevalent people afflicted by those issues are in the criminal justice system.

Sarah Champion (Labour, Rotherham)

May I add one more group? By far the biggest group to suffer benefit sanctions is young people, because they simply do not understand the paperwork and the terms put in front of them. I am nervous that young people, too, might naively fall into this offence; the word “deliberately” is a very strong one to include.

Dan Jarvis (Labour, Barnsley Central)

My hon. Friend is right: young people form another category of people who could be affected by the amendment.

As I was saying, the Committee will be aware of how prevalent people afflicted by the issues mentioned are in the criminal justice system. Most of us would also accept that provision for that group is somewhat patchy and people are often let down by a failure to recognise and meet their needs. For instance, the Committee may be aware of the report published in January by the Care Quality Commission, in conjunction with the inspectorate of probation, the inspectorate of constabulary and the Crown Prosecution Service inspectorate. Their inspections found that offenders with learning disabilities are not getting the support they need from police, probation and prosecution services. They estimated that as many as 30% of those going through the criminal justice system have learning disabilities of one form or another.

Without additional safeguards, there is a danger that this new offence could lead to people being imprisoned for a considerable period owing to a technical breach of licence conditions. That applies particularly to those with learning disabilities, who may not fully understand what is expected of them.

Sarah Champion (Labour, Rotherham)

We all know that about 60% of the prison population have learning difficulties to some degree. It is a shocking figure and I would rather the issue had been sorted out in Sure Start units and in schools, but unfortunately this is the position we are in, so the problem my hon. Friend is referring to could be enormous if we do not put proper safeguards in place.

Dan Jarvis (Labour, Barnsley Central)

Again, my hon. Friend is right to make that point. A significant and worrying proportion of people in custody have learning disabilities. Let me give a practical example. A significant and worrying proportion of people with learning disabilities have problems with telling the time. That can lead to their missing appointments and being recalled for technical breach of their licence conditions. I know that the Minister and the Government will be conscious of that. This matter has been raised, and officials at the Minister’s Department have stated that they believe guidance to be the appropriate mechanism for setting out this distinction. There remains a concern, however, that that will still not provide adequate protection to ensure against inappropriate prosecution. Making the distinction in legislation of deliberate intent—or the lack of it—would help to ensure that people are not prosecuted inappropriately. Vulnerable people caught up in the justice system often need greater support to meet the conditions of licence requirements. None of us wants vulnerable defendants to be set up to fail.

Sarah Champion (Labour, Rotherham)

My hon. Friend will agree that, although it is right that people who deliberately breach their terms should be caught by this legislation, it is vulnerable people whom we are particularly concerned about. I cannot see how including the word “deliberately” detracts at all from the Bill. It would tighten it up, so that vulnerable people who inadvertently got caught were protected.

Dan Jarvis (Labour, Barnsley Central)

My hon. Friend is absolutely right. As I have made clear, when people deliberately seek to evade, it is absolutely right and appropriate that there be consequences, but this tiny amendment is designed to provide an additional safeguard to support those who do not. As my hon. Friend said, that includes young people, and it includes people with learning disabilities and with mental health issues. The amendment is designed to be helpful and constructive. I hope the Committee will give it good consideration so that, working together constructively, we can put the appropriate safeguards in place to protect those who are vulnerable in this regard.

Robert Buckland (Conservative, South Swindon)

I will be brief. I am interested in the hon. Gentleman’s point about reasonable excuse. I am trying to remind myself of the provisions of the Bail Act 1976. Perhaps those who advise my hon. Friend the Minister can assist here. As I recall, if a person fails to surrender to bail without reasonable excuse, he or she might be guilty of an offence. That phrase “reasonable excuse” gives the court a wide discretion to consider on the basis of evidence whether the failure to surrender to bail was not that person’s fault or there is another explanation. So a discretion is firmly built into the court process to allow for those decisions to be made. Similar provisions apply to breaches of court orders. The court will have a discretion to consider on evidence whether a reasonable excuse has been established or whether it is satisfied that there is no reasonable excuse, to put it on its proper basis, because the criminal standard of proof has to apply. The court has to exclude the possibility that a defendant has a reasonable excuse.

As I read the provisions in clause 10, I do not see any difference between them and those we are familiar with in the other examples I have outlined. Although I understand and entirely support the concerns of the hon. Member for Barnsley Central about people with learning difficulties and other needs who often find understanding the provisions not the easiest thing in the world, I am not sure whether the word “deliberately” adds anything in true measure to the court’s discretion in these circumstances. It is important to have a debate about these issues, but I remain to be convinced that that amendment is necessary. I would welcome observations from my hon. Friend the Minister about the extent of the court’s discretion and the burden and standard of proof that it will apply when determining issues relating to this offence, either by way of trial or other process.

Yasmin Qureshi (Labour, Bolton South East)

May I pick up on what the hon. Member for South Swindon just said? He explained that if someone fails to attend their bail hearing, the court will look at the reason and if there is a justifiable explanation then they will be found not to be in breach of their bail condition. We are still not clear that that is so in these cases, so we need further clarification from the Minister. The Prison Reform Trust said that there should be a distinction between offenders who wilfully evade or abscond and those who have a reason for not being there, such as not being aware of all the different conditions. It is hard to know whether that is allowed.

It is not within the remit of the amendment, but we are talking about clauses 10 and 11 so it seems appropriate to ask whether it is necessary to increase the sentence of six months to two years. That seems excessive. We already have a large prison population in overcrowded prisons. I know some people think prison is the panacea for all criminal offences—just bang people up and give them long custodial sentences—but that is not what happens. People may be put away for two years, but we should know whether there are any mitigating circumstances and have an idea of why the situation occurred. These provisions appear to be a case of using a sledgehammer to crack a nut.

Julian Huppert (Liberal Democrat, Cambridge)

I listened carefully to what the hon. Lady said about the criminal sanctions. It is good to find that there are some more liberally minded people around who think that longer jail sentences do not always work. I bring her back to the issue of reasonable excuse. As my hon. Friend the Member for South Swindon said, section 6 of the Bail Act 1976 states:

“If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence.”

Why should there be a different test for recall and bail? It would seem sensible to have the same test for both.

Yasmin Qureshi (Labour, Bolton South East)

That is what I am saying. For someone who did not deliberately evade recall but did not return for whatever reason, the provision in the Bail Act should apply. We are asking for clarification on whether, for those who are out on licence and do not bother to turn up or something like that, that is it, or whether the explanation given is important. There should be clarity about whether the person is given an opportunity to say what happened to them, as opposed to being found guilty just because they were regarded as being at large. I am not asking for any specific changes, just that that element should be allowed. Secondly, I ask the Minister to reconsider the penalty jumping from six months to two years, as that seems a bit excessive.

Jeremy Wright (Conservative, Kenilworth and Southam)

To pick up on the hon. Lady’s final point, she will recognise that that change is made by clause 11. I am sure that you would not want me to talk, Mr Crausby, in the context of the amendment, about information covered by that clause.

The amendment seeks to ensure that only those who deliberately remain unlawfully at large and fail to return to custody are caught by the offence. I understand the aim set out by the hon. Member for Barnsley Central and I am grateful to him for the way in which he put it. I accept entirely that he seeks to be constructive and to improve the offence. I understand that he also seeks to avoid a situation in which the offence penalises those offenders who remain unlawfully at large through no fault of their own. I assure him that there are already sufficient safeguards in the clause to ensure that the new offence will catch only those who deliberately and wilfully seek to avoid serving the rest of their sentence, having been recalled for breaching their licence conditions. Therefore, the amendment is unnecessary.

For someone to be guilty of the offence, they have to have been notified of the recall. Therefore, if they had not been notified of recall at all, they would not be guilty. The vast majority of recalled offenders are returned to custody within a few days. Some are unaware that their licence has been revoked until they are arrested and, in those cases, the offence will not apply.

For a recall to take place at all, probation officers will need to have reached a view that it is appropriate in that case. The first decision taken before this offence could have any purchase on an offender would be that recall is appropriate in that case. Of course, if someone had very good reason for failing to comply with their licence conditions, those probation officers may well consider recall not to be appropriate in the first place. The provision we are discussing, however, is carefully framed so that an offender recalled to prison will be guilty of committing the offence only if they have been notified of the recall—either orally or in writing—or if they can be treated as notified of the recall in light of repeated failures to keep in touch with probation as required.

Sarah Champion (Labour, Rotherham)

How does that work if the person is homeless?

Jeremy Wright (Conservative, Kenilworth and Southam)

That must be considered when deciding whether someone has been properly notified. If someone is registered as homeless, they are obliged as part of their licence conditions to give an address to which post can be delivered so that they can be contacted. As the hon. Lady will recognise, it is important that someone on licence is in touch with their probation officer, so there must be a mechanism by which that can take place. Of course, the fundamental point here is that if there is a failure to comply with licence conditions, or in this case to return following a recall, if the offender fails without reasonable excuse to take all the necessary steps to return to custody, they may be guilty of this offence.

Mr Buckland rose—

Jeremy Wright (Conservative, Kenilworth and Southam)

My hon. Friend is about to intervene. I may be able to preclude his intervention by saying that he is entirely right that we are setting out a criminal offence in relation to this matter. Therefore, the criminal standard of proof applies, and the burden of proof remains on the prosecution to demonstrate the elements of the offence, as he would expect. I will happily give way to him.

Robert Buckland (Conservative, South Swindon)

I am very grateful for that clarification. Having looked again at schedule 8 of the Criminal Justice Act 2003, which is sometimes referred to as the Blunkett Act, the phrase “reasonable excuse” is used when setting out the parameters within which a breach of a community order is to be established, so there is a clear thread here. The language is consistent and allows for the widest discretion.

Jeremy Wright (Conservative, Kenilworth and Southam)

Yes, as my hon. Friend says, the court would have to be persuaded in each case brought before it under this new provision that there was no reasonable excuse. If they find that there was a reasonable excuse, of course the individual would not be guilty of this offence, but that would be a matter for the court in each case.

I understand entirely why the hon. Member for Barnsley Central rightly raised particular concerns around young people and those with learning disabilities. It is important that licence conditions are explained in clear language when they are first imposed, so that everyone understands what they are expected to do. As the hon. Gentleman may know, we are already committed to making sure that there is an easy read version of licence conditions so that particularly those with learning disabilities have an opportunity to understand what is required of them.

Again, if it were apparent to the court that licence conditions were not properly explained, that may be considered a reasonable excuse, but it will be a matter for the court to decide on the facts of each case. I can say to the Committee that this offence is not about locking up as many people as possible or prosecuting them unnecessarily. It is about ensuring that, in the most serious cases, where an offender has been recalled from licence and run off to avoid serving their sentence, the courts have the necessary powers to deal with them. For the reasons I have set out, I do not believe that the amendment that the hon. Member for Barnsley Central tabled is necessary, although I entirely understand why he has sparked the debate.

Julian Huppert (Liberal Democrat, Cambridge)

Before the Minister sits down, perhaps I could return to the point that was made by the hon. Member for Bolton South East. It applies to clause 10(5) as well as clause 11, as it is the same issue. Having checked the Bail Act 1976, as I understand it, the sentence for skipping bail, with all the reasonable excuse arguments, is three months from a magistrates court or 12 months from a Crown court. Can he explain why this is more serious? It seems to me that in both cases there are essentially the same effects of refusing to show up when you are required to do so.

Jeremy Wright (Conservative, Kenilworth and Southam)

There is a material difference. We are talking here about those who are subject to a prison sentence, who are released from the custodial part of that sentence but still subject to the remainder of that sentence, who choose not to comply with an order for their recall to custody. Those cases can be extremely serious. If someone is towards the latter part of their sentence, under the law as it stands, all we can oblige them to do after eventually effecting their recall is ask them to serve the remainder of the sentence that they had already received. We think it is important that a substantial penalty is available for the courts to use in appropriate cases. This is again a maximum sentence, and it does not mean that the court will impose two years in every case. However, we think it is appropriate for there to be a significant penalty available for those who effectively cock a snook at the law and decide not to return when they are obliged to do so as a subject of recall.

Dan Jarvis (Labour, Barnsley Central)

This has been a useful debate, and I am grateful for reassurances from the Minister. Clearly, there is concern about this issue. I am sure that we will return to it in due course but, for now, given the Minister’s assurances, I beg to ask leave to withdraw the amendment.

Clause 14 - Restrictions on use of cautions

Dan Jarvis (Labour, Barnsley Central)

I will speak to clause 14, but first, if I may, I will say a little about the preceding clauses in the group. Clause 11 increases the maximum sentence for the existing offence of remaining unlawfully at large after temporary release. The Committee has already debated the introduction of a new offence of remaining unlawfully at large after recall under clause 10. It therefore makes sense to bring the penalties for that offence into line with those for the existing offence of remaining unlawfully at large after temporary release. Clauses 12 and 13—

David Crausby (Labour, Bolton North East)

Order. You can speak only to clause 14 at this point, Mr Jarvis.

Dan Jarvis (Labour, Barnsley Central)

I will turn to clause 14, Mr Crausby. It is a reform that we wholeheartedly welcome. I congratulate the Minister and the Government. We have been calling for this proposal for several years.

Cautions and out-of-court disposals are an important tool in dealing with low-level offending. When used in the right way, they can successfully deter people from progressing further up the criminal ladder, help free up valuable court time and enable a more localised approach to law and order. However, there will be agreement across the Committee that our criminal justice system is substantially cheapened when cautions are handed out for serious violent and sexual offences. It erodes confidence and public trust, makes victims feel that the system is against them rather than on their side and can lead to people questioning whether it is worth coming forward to report crimes at all.

Innocent victims want to know that those guilty of serious crimes will be given the appropriate punishment. However, according to figures from the Ministry of Justice, nearly 1,200 simple cautions were issued for domestic violence in 2012-13. Over the same period, there were 552 cautions for sexual assault against men and women, as well as 16 cautions for rape. That is wrong and should not be happening. That is why in January last year my right hon. Friend the shadow Home Secretary called for police cautions no longer to be used for serious offences.

According to figures published by the Magistrates’ Association, one in four violent offenders, one in five sex offenders and one in 20 offenders with more than 10 previous convictions have all escaped with only a caution from police. The chairman of the Magistrates’ Association described use of cautions as having “got out of hand” in a letter to the Justice Secretary last year. I am glad that the Secretary of State has listened to him and the many others who have long been calling for action on this issue. The Opposition would have preferred action sooner, and many victims will feel that offenders have been let off lightly during the time it has taken to bring the measures forward, but the proposals are still welcome.

I want to make four specific points to the Minister and the Committee. The first relates to subsection (5) of the clause, which says that police officers may not issue cautions if they are below a certain rank, to be specified in an order made by the Secretary of State. Will the Minister tell us when we can expect that order and whether he has given any consideration to further specifying that rank in the Bill to ensure an appropriate level of seniority? The Magistrates’ Association has proposed amending the subsection to replace “senior police officer” with “senior police officer, of at least rank of inspector.” Does the Minister think there is any merit in that proposal?

Secondly, the Committee will remember what Richard Monkhouse, the chair of the Magistrates’ Association, told us in evidence last week. On cautions, he said that

“with 43 chief constables, there were 43 ways of handling it. That is why in one area you can get 73% of people being given a simple caution or being dealt with out of court, and in another area 30% of people are dealt with out of court. All of that needs standardising”.––[Official Report, Criminal Justice and Courts Public Bill Committee, 11 March 2014; c. 27, Q57.]

Guy Opperman (Conservative, Hexham)

Earlier, the hon. Gentleman supported my point that localisation is a good thing, but he now seems to be saying that it is not a good thing. Will he clarify his position?

Dan Jarvis (Labour, Barnsley Central)

I am happy to clarify that we seek to raise what I hope the Committee will consider to be reasonable and constructive points of debate for the Minister to respond to. Most people will agree that that is useful. I am sure the Minister will be able to deal comprehensively with my questions.

Guy Opperman (Conservative, Hexham)

No disrespect, but the hon. Gentleman has not answered my question. Is there scope for individual police forces and police and crime commissioners that know their area’s problems—whether Manchester or Northumbria—to have greater control over their area, or is localisation a bad thing? The hon. Gentleman was clear in his opening remarks that he supports localisation.

Dan Jarvis (Labour, Barnsley Central)

I am genuinely grateful to the hon. Gentleman for his intervention. There is scope for localisation, but the debate is about where the balance should be struck. It is important that we use the opportunity to debate the issue in Committee. It is constructive and useful to ask the Minister where he thinks the balance should be struck in the Bill, and that is what I seek to do.

Sarah Champion (Labour, Rotherham)

I have been doing a lot of work on abduction notices, which are cautions, and one of the biggest problems is that forces implement them subjectively. Often, guidance that is given to police forces is not implemented, so different police officers have a different understanding of when they are or are not appropriate. Some crimes happen in several regions and some criminals develop a sophisticated understanding of different police forces’ tolerances. Therefore, it would be extremely helpful to have guidance on this matter.

The other problem, to which my hon. Friend alluded, is that the victims’ faith in the police is undermined when serious offenders receive caution after caution. Anything the clause can do to strengthen cautions and clarify their use is welcome.

Dan Jarvis (Labour, Barnsley Central)

My hon. Friend makes a useful and interesting point. It is useful for us to debate these issues, and I look forward to hearing what the Minister has to say about my hon. Friend’s point and my questions.

There are already stringent rules about when it is acceptable to caution violent sexual offenders. Only a police officer of a certain rank can do it, and they have to consult the CPS to ensure that it is the right thing to do. The problem is that there is scant evidence to show that that is actually happening. For example, my hon. Friend the shadow Attorney-General recently sent freedom of information requests to police forces asking how often they had sought CPS approval for cautions issued for penetrative sexual assault on women. Their responses showed that only three of the 16 cautions issued for rape were referred to the CPS. It would therefore be helpful if the Minister told the Committee what steps the Government will take to ensure that subsection (2) works in reality.

Thirdly, may I probe the rationale for the two-year time period in subsection (4), which specifies that a caution may not be issued to a person convicted or cautioned within the previous two years? Most people would agree that it is not appropriate to keep issuing cautions to people who reoffend time and again. However, some people have questioned whether a two-year time period is enough. The Magistrates’ Association suggested that a period of three to five years might be more appropriate to capture all cases, not only summary offences.

I note that although the Bill proposes a two-year time period in subsection (4)(b), it will give the Secretary of State the power to alter the time period under subsection (7). That suggests a degree of uncertainty about whether two years is an appropriate time period. Therefore, will the Minister explain the Government’s rationale for setting the time period at two years? Will he consider extending it?

Fourthly and finally, we should remember that a simple caution is just one form of out-of-court disposal. Police powers to issue conditional cautions without making reference to the CPS are being expanded. How do the Government plan to ensure that the same problems that beset the use of simple cautions do not apply to those as well? That concludes the key issues that I wanted to raise.

Let me finish by repeating that we are in agreement on the importance of stopping cautions being issued for serious, violent, sexual and repeat offences. I would be grateful to the Minister for assurances on those points, and I hope that that will allow us to support clause 14 and the other clauses in the group to stand part of the Bill.

Yasmin Qureshi (Labour, Bolton South East)

Cautions and their use have exercised lawyers, judges, prosecutors and everybody else for a number of years. There has always been an issue about cautions being given in some parts of the country for specific types of offence, whereas, for the same offences in other parts of the country, they are not. There has always been an argument and a big debate about whether that is right or wrong. Some parts of the country may have a particularly prevalent problem such as knife crime. I remember that years ago, in some areas, people would be cautioned for possessing offensive weapons because there was not a problem in that part of the country, but where there was a problem, they would be prosecuted. That same argument could continue to be had about who should be given cautions, or whether the police should be the sole arbiters of deciding who cautions should be given to.

As I understand the current rules, the police decide whether somebody should be given a caution and cautions are normally delivered by an inspector-ranking police officer. Sometimes, a case proceeds to a charge; sometimes, the prosecution may ask for a caution as a way to dispose of the case. Therefore, it is right to take a proper look at how cautions are being used and what is happening.

I have a general issue to raise. There is rightly concern that cautions have been issued in some cases where the allegations are serious. However, I would urge a cautionary note from my own practical experience many years ago, and I will give the circumstances of a case.

A young boy, about 14, was in a care home, and he set fire to the curtains and then tried to put the smoke out. It was considered whether he should be charged with the offence of arson, which, as everyone here would recognise, is a very serious offence. Therefore, should a caution have been considered? However, we then found out about his life. On the occasion that he had done this, he had apparently been in court to give evidence against his mother’s boyfriend, who had raped his young sister. He had arrived at court to give evidence—his young sister, who had been raped, was about seven or eight—and the first thing his mother did, when she saw him, was give him a big punch in his stomach. As a result, he was incredibly upset and when he got back to the care home, that is when the idea occurred to him. He then tried to put the fire out as well and, fortunately, no damage occurred. If we go by those things, would a caution with him be an option?

Andrew Slaughter (Labour, Hammersmith)

My hon. Friend is making a persuasive argument, but there is another point to be considered. When a caution is given, often the surrounding circumstances are not known, and therefore, it appears to be an inappropriate punishment. There is, as I think the Magistrates’ Association would agree, some virtue in offences, particularly serious offences, coming before a tribunal, so that the tribunal could not only use its discretion, but show to the public that justice is being done.

Yasmin Qureshi (Labour, Bolton South East)

The case that I described is not unusual. A number of cases could fall into that category, so instead of a blanket ban, saying, “On the face of it, the facts appear such that a caution should not be considered,” perhaps what could be done is—

Roger Gale (Conservative, North Thanet)

Before we start, I must inform the Committee that because of a printing error some amendments tabled yesterday have been omitted from today’s amendment paper. The ones affected are a Back-Bench amendment to schedule 4, and Government amendments to clauses 24 and 26. A revised amendment paper will be made available on the internet as soon as possible, and the amendments will be considered for selection on Thursday as usual. I can only apologise.

Yasmin Qureshi (Labour, Bolton South East)

I shall try not to repeat what I was saying before lunch. I was making a point about whether there should be a blanket rule. Just because on the face of it an offence is deemed to be serious, the possibility of a caution should not be ruled out, because there could be circumstances where it would be appropriate, and a better way to deal with the mischief.

It has been suggested that cautions have sometimes been given erroneously or inappropriately, and that they have not been used uniformly or consistently throughout the country. I am sure that Crown Prosecution Service or police guidelines can determine the types of case where it would be right to consider a caution. There are ways to deal with those issues and restrict the use of cautions so that they are only used when appropriate. That could happen without ruling out in statute their use for all serious offences.

That leads me to the next question on which I hope the Minister can give us information. What is meant by very serious offences—indictable offences, or perhaps either-way offences?

Jeremy Wright (Conservative, Kenilworth and Southam)

It may help if I answer that question immediately. The hon. Lady will see from clause 14 that subsection (2) is about indictable-only offences, and subsections (3) and (4) are about either-way offences. Both are covered, but by different subsections.

Yasmin Qureshi (Labour, Bolton South East)

Either-way offences can be tried in the Crown court or the magistrates court. To take theft as an example, it is an either-way offence and could be categorised as very serious; but then a theft such as shoplifting could not be cautioned. That is why I want clarity about very serious offences.

Either-way offences could be caught, but some either-way offences are minor. When mode of trial is determined in court, it can be decided that an offence such as theft, or even assault occasioning actual bodily harm, should be dealt with in the magistrates or the Crown court.

Is it intended that either-way offences that are sent to the Crown court should be deemed serious? That could not be known before the mode of trial process in the magistrates court had determined which court would deal with the matter; hence my question about how seriousness is defined.

As hon. Members know, sentences can vary from a few months to five years for some either-way offences. I wonder whether, unwittingly, the provisions will catch many either-way offences at the lower end of the scale. Even with indictable offences, the term of imprisonment may actually be quite low.

Would the cautions regime apply only to adult defendants, or would the seriousness criterion apply to the cautioning of young offenders as well? Obviously, different sets of circumstances apply to youth offenders and adult offenders, but cautioning, referrals and other methods are also used on youth offenders. I wonder whether, in an attempt to solve a problem and by putting a blanket over everyone, we could actually stigmatise people with a conviction when a caution may be more proper.

The Crown Prosecution Service has a manual that describes the policy aspect of each type of offence. For any particular category of offence, it will recommend looking at the nature, content, relationship and who the victims and witnesses are, and, as a result, the public interest criteria may mean that a case is not proceeded with. I wonder whether cautioning—if the idea is to tighten the definition or to reduce its scope—could be dealt with through an amendment of the manual or of internal police circulars. It might be a lengthier process, but it might leave the option of caution being used for either-way offences that are deemed to be serious, but are at the lower end of the scale and would be heard in a magistrates court. Those are just a few things to think about.

Jeremy Wright (Conservative, Kenilworth and Southam)

It is a pleasure to see you in the Chair, Sir Roger.

I start by welcoming the comments of the hon. Member for Barnsley Central about clause 14. I agree with him entirely that there is substantial public concern about cautioning. We are in agreement that it is right for us to change the rules, so that offences that are serious enough to be indictable should not be cautioned, save for in exceptional circumstances; that serious either-way offences should not be cautioned, apart from in exceptional circumstances; and that if someone is consistently repeating the same type of offence, they should not be repeatedly cautioned for it. Those are the things clause 14 seeks to address.

The hon. Gentleman raises several specific issues, including the rank of police officer required to reach a judgment on exceptional circumstances for indictable or either-way offences, or on whether a subsequent offence was similar enough to qualify as one that should not be cautioned. The guidance that we will publish if the clause is passed will become statutory. Non-statutory guidance already exists, so although we have not reached the point at which statutory guidance is drawn up, I can tell the hon. Gentleman that the rank of officer required to determine whether an indictable offence is exceptional enough that cautioning would be appropriate would be a superintendent. For either-way offences or repeated similar offences, an inspector or above is required to make that judgment. I hope that that is helpful.

For all such decisions, we want to ensure that sufficient flexibility exists for those ranks to be changed in specific local circumstances, such as if there was no superintendent. That is why we deem it inappropriate to include such a provision in the Bill, but the hon. Gentleman can rest assured that similar considerations will be applied to the statutory guidance as have been applied to the existing non-statutory guidance.

Andrew Slaughter (Labour, Hammersmith)

The clause is wholly sensible—I will let that compliment sink in for a moment—as is the flexibility mentioned by the Minister. As for the reasons given for a caution, their details and the way of recording them, I think of the lengthy example that was given just before our short adjournment, whereby, in explaining why there might be exceptional circumstances, one has to go into some detail. How does the Minister see that happening and how does he see it being varied over time if it proves to be insufficient?

Jeremy Wright (Conservative, Kenilworth and Southam)

I am very grateful for the hon. Gentleman’s endorsement, although frankly, having heard him I am wondering whether a redraft of the clause will be necessary. I take his point and I think it is important that we ensure that the recording of exceptional circumstances is clear. It is also important that we give the clear message that there must indeed be exceptional circumstances. I was going to go on to say that it will not simply be sufficient for a senior officer to have decided that a caution is appropriate for an indictable offence; the consent of the Director of Public Prosecutions will also be required.

The hon. Member for Barnsley Central asked how that process will work. Of course, the Attorney-General superintends the Crown Prosecution Service, so it will be for the Director of Public Prosecutions and the Attorney-General to issue appropriate guidance, but we would expect it to be made clear to prosecutors as well as senior police officers that these cautions would only be appropriate in the most exceptional cases.

The hon. Gentleman’s third question concerned why two years is the appropriate time period for repeat offences. I accept that it will be a question of judgment and that different views will apply as to what the appropriate length of time is. I mentioned that there is already non-statutory guidance that includes the two-year figure, so we are taking it from that, but he rightly observed that there is provision within the clause for the time period to be changed if we conclude that it is inappropriate. That change would have to be made through the affirmative resolution procedure, so Parliament would have an opportunity to give its view.

The first question from the hon. Member for Bolton South East concerned whether the new provisions will apply to those under the age of 18. They will not. Subsection (1) says:

“This section applies where, in England and Wales, a person aged 18 or over admits that he or she has committed an offence”.

Secondly, she was of course right to say that some either-way offences can be more serious than others, and we have made it clear in the clause that the new provisions will not apply to every either-way offence. Serious either-way offences will be set out by order and the new provisions will apply to those, but not to all either-way offences. She might expect that shoplifting, for example, would not be among those likely to be on such an order.

The hon. Lady’s third point is entirely right: even in situations where, as a general rule, it would be wholly inappropriate for cautions to be applied, there will inevitably be exceptional cases where it would be appropriate. Nothing in clause 14 excludes the possibility of those exceptional cases. Indeed, we have set out precisely in relation to each of the three sets of circumstances we have been discussing that the exclusion is in the absence of exceptional circumstances. I hope the hon. Lady is reassured by that and that she and her hon. Friends will be able to support the clause.

Clause 15 - Orders under section 14

Jeremy Wright (Conservative, Kenilworth and Southam)

I beg to move amendment 4, in clause 15, page 16, line 16, at end insert—

‘( ) In section 37B of the Police and Criminal Evidence Act 1984 (consultation with the Director of Public Prosecutions), in subsection (7), after “such a caution” insert “(whether because of section 14 of the Criminal Justice and Courts Act 2014 or for any other reason)”.’.

Dan Jarvis (Labour, Barnsley Central)

It is a pleasure to serve under your chairmanship, Sir Roger. I thank the Minister for explaining to the Committee the amendment, which is technical and clearly necessary. I take the opportunity to remind him of the example I gave earlier of the freedom of information request sent to police forces by the shadow Attorney-General, my hon. Friend the Member for Islington South and Finsbury (Emily Thornberry). It showed that, although provisions are in place regarding consulting the Director of Public Prosecutions, they are not always followed in practice. I listened carefully to his response, but will he take the opportunity now to add anything further on the steps the Government will take to ensure that the Bill will be followed on the ground?

Jeremy Wright (Conservative, Kenilworth and Southam)

The hon. Gentleman will appreciate that it is difficult for me to say definitively that all guidance will be followed in every case. Clearly, we would wish it to be so. We will certainly look at ways we can strengthen the wording of the guidance to make it clearer, if what ought to happen is not clear. But guidance is there for a reason: to give an indication of what we believe should happen and the way it should happen.

Clause 16 - Possession of pornographic images of rape and assault by penetration

Dan Jarvis (Labour, Barnsley Central)

I beg to move amendment 14, in clause 16, page 16, line 30, leave out from ‘explicit’ to end of line 31 and insert

‘way, real or simulated depictions of either—’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment 29, in clause 16, page 16, line 31, leave out from ‘of’ to end of line 37 and insert

‘the portrayal of sexual activity which involves real or apparent lack of consent,’.

Amendment 28, in clause 16, page 16, line 37, at end insert—

‘(c) sexual activity where one of the participants is portrayed in such a way as to make them appear under 18;

(d) a person participating in a sexual activity with someone who is depicted as a member of their immediate family; and

(e) sexual activity incorporating sexual threats, humiliation or abuse which do not form part of a clearly consenting role-playing game.’.

Dan Jarvis (Labour, Barnsley Central)

First and foremost, may I wholeheartedly welcome the inclusion of clause 16 in the Bill? I thank the Government for introducing this important measure.

Clause 16 will extend the definition of an extreme image in the Criminal Justice and Immigration Act 2008 to ban the possession of extreme pornographic images that depict rape and other explicit, non-consensual sexual acts. Its inclusion in the Bill is a real victory for groups like Rape Crisis South London and the End Violence Against Women coalition that have long campaigned against rape pornography. Their open letter to the Prime Minister last summer was signed by more then 100 women’s groups, academics and campaigners and has been instrumental in bringing us to this place. The Opposition know that the Prime Minister is personally committed to this proposal and wants to make it work. We are eager to work with the Government to help to ensure that we get this right and to stamp out such abhorrent images. It is in that spirit that we tabled these amendments to explore how the Bill might be improved.

The Committee will remember the evidence that we heard last week from the British Board of Film Classification, which has a key role in deciding what should be classified as sexually violent and abusive pornography. The verdict that we heard from its assistant director, David Austin, was clear. He confirmed that some examples of sexually violent material, including violent and abusive pornography, would not be caught by the Bill. With that in mind, we feel that three issues need clarification, the first of which relates to amendment 14.

Subsection (2)(c) clearly states that an image will come within the scope of the offence if it portrays something in an “explicit and realistic way”. As Mr Austin explained, that could allow material that is badly acted, such as clearly fictional depictions of rape with actors acting a script, escaping the scope of this legislation. That could be the case even if the works include scenes of relentless, aggressive abuse, threats of physical violence with weapons and forced acts of sex. I understand that the Government plan to issue revised explanatory notes to the Bill to clarify the issue, but with those not yet published, I would very much appreciate any detail the Minister can offer on how that will be done.

The second issue is captured by amendment 28. Again, it is a drafting issue with the current wording making it clear that material would only be legal if it showed explicit content. Therefore, for example, an extreme video showing a woman being aggressively raped at gunpoint could escape sanction if it did not show any penetration. That sort of material is viewed by the BBFC as harmful and not allowed. It is unclear whether clause 16 would have the same impact.

The third issue is reflected in amendment 29. Ultimately, one of the biggest challenges in this debate is that material that is strictly prohibited offline can be available online at the click of a mouse. The Prime Minister has a clear aspiration to resolve this. Last year, he said:

“Pornographic videos streamed online in the UK should be subject to the same rules as those sold in shops.”

There is some ambiguity, however, on whether clause 16 will achieve this. Concerns have been raised, for example, about videos portraying under-age sex, many of which feature women who are over the age of 18 but look far younger and are purposely depicted as pre-pubescent. That is exacerbated by pairing them with much older actors, resulting in material that has been described as looking just like child abuse.

The Prime Minister sought to clarify whether this is an issue in his letter to my hon. Friend the Member for Kingston upon Hull North (Diana Johnson). In the letter, which members of the Committee may have seen in the Library, the Prime Minister said that it would be possible to ban this material through powers in the Criminal Justice Act 2009. However, guidelines provided by the Ministry of Justice and the Crown Prosecution Service related that legislation more to drawings and photographs than to video content.

As well as the under-age issue, there are similar concerns about material portraying incest or scenes of humiliation and abuse that go far beyond the boundaries of consent. Amendment 29 would insert three terms from the BBFC’s guidelines into the Bill. Material that fitted within those definitions would not be classed as R18 and would not be not acceptable, even in licensed sex shops. Will the Minister assure us how that legislation will be amended to close those apparent loopholes?

We appreciate that the amendments raise complex issues. For that reason, we will not press them if the Minister can provide an undertaking that the Government will look carefully at these issues. I am sure that there is full agreement across the Committee that such images are unacceptable. Just as the last Labour Government acted to ban pornography depicting harmful and life-threatening acts, we are ready to work with this Government to send a clear message that extreme material that glorifies sexual violence is not acceptable.

Sarah Champion (Labour, Rotherham)

It is a pleasure to serve under your chairmanship, Sir Roger. I will start by reading some of the witness evidence from David Austin:

“Yes, there are examples of sexually violent material that are not caught by the Bill. There are a number of areas of violent and abusive pornography that are not caught. It might help if I list one or two of those areas.

Clause 16 clearly talks in terms of realistic and explicit depiction of rape in pornography. We deal with quite a large number of pornographic works every year and have done for many years. Some of these feature clearly fictional depictions of rape and other sexual violence in which participants are clearly actors, acting to a script. These works may include scenes of relentless aggressive abuse, threats of physical violence with weapons and forced acts of sex. Depending on how realism is interpreted in future—certainly it has been interpreted very narrowly in the past, but I understand that the Government will amend some of the explanatory notes to the Bill on realism—that may change.

Another area where we cut porn on harm grounds under the Video Recordings Act relates to abduction scenarios where individuals are shown bound, kidnapped, struggling with bonds, and whimpering—shown as victims restrained against their will with no other context. We also cut grooming scenarios which feature the grooming of individuals portrayed as youthful, sometimes youthful and vulnerable—sometimes they may have the appearance of children, although they are not children but adults—by characters in dominant roles. Animation is another area which we cut. There is a Japanese genre called hentai which is a pornographic genre which features things like incest, underage sex and forced sex. They may be realistically animated but you could argue that they are not realistic in the terms of the Bill. The fact that animated images can be harmful is already accepted by Parliament in the Coroners and Justice Act where pseudo images of children in sexual abuse situations are illegal.

The final area relates to explicit rather than realistic. We remove from pornographic works sexually violent content that in our view is harmful, where, for example, you cannot see the explicit act of penetration but the viewer is led to believe that this is a rape scenario, albeit acted. We remove that content.”––[Official Report, Criminal Justice and Courts Public Bill Committee, 13 March 2014; c. 114, Q251.]

Can the Minister reassure us about animation? I did not realise that there was such a genre, and I am not convinced that the Bill will capture it. Is there a way that we can incorporate it?

There is growing evidence of the impact of this sort of product, particularly on young people. I have heard from young girls who see such hard-core pornographic material and are genuinely fearful of their first sexual encounter, because they think that that is what sex is about and that they ought to endure this sort of abusive experience. I have also heard from young boys who, as young boys do, when they are searching around to try to figure about a bit more about sex, stumble across this material and therefore think that this is the way they should act towards a woman. How would those young people be captured by the Bill? Would a young teenage boy who came across this material be caught by the offence? Are there ways that we can protect them here?

More broadly, I welcome the clause because it sends out a strong message that this is completely unacceptable. A number of women’s charities and child protection charities are pleased that the clause has been included, and I second that. When I asked the witnesses whether they felt that the law protected against child abuse images, they said that it did, so I am comforted by that.

Are there ways to strengthen the message that the Government are sending out that this is wholly unacceptable and to ensure that the producers are shamed, caught and convicted, so that they are unable to continue to create this—I do not know what to call it—material? At the moment, the clause seems much more focused on the person who is in possession rather than the people who create the material. I have not tabled an amendment, so I assume it is too late to weave that into the fabric of the Bill, but it would be great if at a later date the Minister could consider that. I would like the people who are creating such material to be captured by the Bill, too.

Robert Buckland (Conservative, South Swindon)

It is a pleasure to follow the hon. Member for Rotherham, who rightly outlines the reasoning behind the introduction of this very necessary measure. It is about the detrimental effects that extreme, violent pornography has on society as a whole. It is about trying to counter a climate where this sort of behaviour is condoned and seen as somehow normal. As she rightly said, exposure to this type of violent material leads young people to believe that that is the way to behave. There is quite clearly a societal imperative for us to take action on such material.

I am interested in the Opposition amendments, particularly amendment 14, which relates to how the definition of what is realistic could be clarified. I welcome indications that the explanatory notes will be further clarified to encompass all the simulated activity that we would want to be included within the definition in the Bill. I am grateful for the evidence that we received from Professors McGlynn and Rackley at Durham law school.

I have to declare an interest: I graduated in law from Durham university, but my extra-curricular activities tended to predominate somewhat, so I cannot aspire to the distinction to which the two learned professors rose. But I am grateful to them for outlining their approach to the Bill. They quite rightly say that the use of the term “realistic” mirrors international provisions on pornography that are designed to cover both real and simulated images. They argue in support of an amendment to suggest that some clarification of what “realistic” means would be helpful. I am fairly open-minded about how we do that. It could be done in the Bill, but if my hon. Friend the Minister can assure me that there are better ways to achieve such clarity, I will be content to listen to his argument.

Clearly, this is an opportunity to fill a gap that some of us would say has existed for too long. I think that we all share the difficult aspiration for criminal law not to have to play catch-up constantly with the more alarming developments with which the otherwise welcome innovation of the internet presents us from time to time.

I hope that my hon. Friend will be able to answer some of the points raised, particularly my point about the definition of “realistic”, so that we can ensure that the measure is as comprehensive as possible and will protect those in society who are not only vulnerable but liable or exposed to undue influence if such material is seen as normal or part of normal life.

Jeremy Wright (Conservative, Kenilworth and Southam)

I think that we are all conscious of the fact that in discussing the clause and the amendments, we must strike a delicate balance as legislators. We are talking about the most extreme and disturbing images, but also those that, although distasteful to most, might not warrant the intervention of the criminal law. We must therefore be careful to balance our distaste, and in some cases disgust, against the personal sexual freedoms of consenting adults to behave as they wish without undue state interference. We must also bear in mind the existing criminal law in related areas.

Andrew Slaughter (Labour, Hammersmith)

It is helpful that the Minister has started his speech by emphasising that the subject is complicated as well as difficult and often distasteful, and regard must be had to freedom of speech, even in this. He is right about that, and he is therefore balancing that against ensuring that there is a societal imperative, as the hon. Member for South Swindon said, that will criminalise types of behaviour that it is reasonable to criminalise. I have an open question for the Minister: does he think that he has got the balance right in the light of the amendments? There is only the single new offence in the Bill. I will not say that it has been done in haste, but it has clearly been done to address a specific problem. Does he think that during the course of the Bill’s passage he should think about it a bit more and perhaps make some refinements?

Jeremy Wright (Conservative, Kenilworth and Southam)

I think that Ministers and everyone else should be humble enough to accept that we may not have got everything right, but inevitably, wherever we decide to draw the line, there will be disagreement about whether we have drawn it in the right place. There will be those who say—they have already said it during the course of this Committee’s deliberations—that we have not gone far enough on the offence; others will say that we have gone too far. I do not think that there is a good argument that we have gone too far; we will certainly always consider whether there is further action that we can take.

In relation to the amendments, it may be helpful for me to explain why I do not support the particular direction that the hon. Member for Barnsley Central has taken, but do not for a moment dispute that his intention is to ensure that we have the right balance, exactly as the hon. Member for Hammersmith set out. I think that I indicated that amendment 14 is unnecessary, given that the clause already covers the depiction of real or simulated non-consensual penetration where that is pornographic and obscene. To come to the point made by my hon. Friend the Member for South Swindon about what is realistic and what is not, and to deal with what the hon. Member for Barnsley Central said, we intend to reconsider the explanatory notes to see whether we can bring greater clarity, particularly on the point that the offence we have in mind would cover both staged and real depictions of rape or other penetration. However, I do not believe that the wording in amendment 14 is the right way to bring that additional clarity.

Amendment 28 would extend the parameters of the existing offence. It would widen the scope of the existing extreme pornography possession offence to cover depictions that appear to portray incest, under-age sexual activity and scenes involving sexual threats, humiliation or abuse. Now is probably the best time for me to provide some background on the law as it stands.

It is an offence under section 63 of the Criminal Justice and Immigration Act 2008 to possess an extreme pornographic image. Depending on the content of the image, the offence is subject to a maximum sentence of either two or three years’ imprisonment. The offence is narrowly targeted, for good reason. Hon. Members will recall that the original offence was created by the then Government following a full public consultation, and it is deliberately targeted at the extreme end of the scale. Material prohibited includes pornographic images—images that can reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal—which are grossly offensive, disgusting or otherwise obscene and which explicitly and realistically depict necrophilia, bestiality or violence that is life threatening or likely to result in serious injury to the anus, breasts or genitals.

Sarah Champion (Labour, Rotherham)

I am delighted to say that I did not know very much about rape pornography before serving on the Committee. I speak specifically as a woman. Research conducted by Rape Crisis in south London in 2011 looked at the top 50 rape porn websites: 78% advertised rape content involving under-18s, or schoolgirl rape; 44% advertised rape content which involved incest; 44% advertised rape content where the woman is unconscious, semi-conscious or drugged; 82% of perpetrators used restraint by force; 71% of women showed signs of visible distress; 65% of women expressed pain—but 100% of those being assaulted are women.

Ten years ago, I would have said that I was a post-feminist. I thought we were on top of this. Now I speak as a feminist because rape porn and these abuses are happening specifically to women to degrade them. As the hon. Member for South Swindon said, the corrosive effect that it is having on young people is shocking. I worry as they grow older that this abuse of women will become the norm. In its briefing to the Committee, Durham university said:

“While those who view extreme pornography will not necessarily go on to commit sexual offences, their use of such materials sustains a culture in which a ‘no’ to sexual activity is not taken seriously; in which equality and dignity are not protected”.

I share the Minister’s concerns about this and am very pleased that this legislation is going forward. However, if there is a way in which the amendments can underline what is and what is not acceptable, instead of having these broad parameters, it would help people to understand what is and is not appropriate behaviour. Anything we can do to get more support for women at a time when support for them seems to be being trampled over will be most appreciated.

Jeremy Wright (Conservative, Kenilworth and Southam)

I do not for a moment dispute what the hon. Lady says. I think she is right that few of us knew anything about this subject before arriving at this Committee’s deliberations and probably were better off for it. There is no doubt that the preponderance of the material about which we are concerned affects women. I simply observe that clause 16 is not gender specific: it would permit us to outlaw that kind of material relating to men as well. I will come to her point about children later.

To conclude my remarks on the development of section 63 of the Criminal Justice Act 2008, during the public consultation, there was considerable concern among respondents and in Parliament that the offence could have a serious impact on people’s private sexual behaviour and personal freedoms. The offence was carefully and deliberately constructed with these concerns in mind. The offence focuses on the high end of the scale—for example, possession of images depicting extreme sexual violence and serious physical harm. It was never the intention that the offence should be used to censor depictions of all activities that may appear distasteful or that would not, for example, appear in a film classified by the British Board of Film Classification.

As the Committee will be aware, following a recent campaign led by women’s groups the Government have decided to extend the parameters of the offence to capture extreme pornographic images depicting rape and other non-consensual penetrative sexual activity. This is a relatively modest but important extension to the offence. It brings the offence more in line with that applicable in Scotland, but remains focused on the original intent. It is clear from what members of the Committee have said that there is concern to ensure that children are protected from sexual abuse and exploitation depicted in these images. I understand and share that concern.

I must make it clear that the Government consider the protection of the country’s children from sexual abuse a top priority, and we are always open to and appreciative of suggestions to strengthen the law where necessary. However, to extend the offence to cover depictions of apparent under-age sexual activity is unnecessary. Although images of children are not specifically excluded from the parameters of the Government’s extended extreme pornography offence, we already have a range of offences to cover the possession of indecent images of children, with suitably robust sentencing levels and much lower thresholds for the content of the images themselves. It is, for example, already an offence under the Protection of Children Act 1978 to take, make or permit to be taken, distribute, or distribute with a view to possession, any indecent photograph or pseudo-photograph— an image which appears to be a photograph—of a child under the age of 18. These offences carry a 10-year maximum prison sentence.

Sarah Champion (Labour, Rotherham)

Would that cover animation? I do not really know anything about animation, but does the Minister think that animated images of a child would be covered?

Jeremy Wright (Conservative, Kenilworth and Southam)

I will answer that in a moment, I promise.

It is also an offence under the Criminal Justice Act 1988 to possess an indecent photograph or pseudo-photograph of a child under the age of 18. That offence carries a five-year maximum prison sentence. In these cases it is a matter for the jury to decide on the age of the victim appearing in the images.

Section 62 of the Coroners and Justice Act 2009 created a new offence to criminalise possession of a prohibited image of a child. That offence attracts a maximum three-year prison sentence. This comes to the hon. Lady’s concern. A “prohibited image” excludes an indecent photograph or indecent pseudo-photograph of a child, which is covered elsewhere, as I have outlined. In effect, that offence targets non-photographic pornographic images—in other words computer generated images, drawings and so on—that depict the graphic sexual abuse of children. It follows therefore that images of incest involving children would fall foul of the existing law. So I can assure the Committee that our laws are now fully equipped to deal with images of the sexual abuse of children.

In addition, although I find the depictions of sexual threats or humiliation and simulated acts of adult incest deeply distasteful, as I am sure does everyone else, there are others—competent adults—who do not share our views. In a liberal democracy, the law intervenes only when necessary. It would be stretching the definition of “necessary” to include these extensions. I do not feel that it is appropriate to broaden the terms of the existing offence any wider than the Government propose.

It is important to state that the extreme pornography offence is one of simple possession, not of publication, dissemination or broadcast. The publication of obscene material is covered by other legislation, including the Obscene Publications Act 1959, but the law should be slow to intervene in simple possession and should do so only where there is a real need. I believe that depictions of rape constitute such a need but that a wider case for prohibition is not made out. I am grateful for the support shown for our proposal across the Committee, but for the reasons explained I am convinced that it is both unnecessary and inappropriate to extend this offence to cover the images that this amendment would capture. I cannot therefore support it.

Amendment 29 would broaden the scope of the extreme pornography offence to cover the portrayal of sexual activity with real or apparent lack of consent. Again, I am afraid I think the amendment is too broad. I understand the intent, but the effect would not be as the hon. Member for Barnsley Central wishes. The amendment would have the effect of bringing within the parameters of this tightly drawn offence the possession of extreme images that depict any non-consensual sexual activity. That would arguably capture relatively low-level sexual contact such as kissing and touching. Of course, we are not here to defend non-consensual sexual activity in any form, but I do not think it is appropriate to target the depiction of the broader spectrum of such activity in this offence.

Andrew Slaughter (Labour, Hammersmith)

I follow what the Minister is saying in relation to subject of image. Is he sure, given the variety of means of communication that there are now—he said himself that computer-generated images are different and that animation is different—that the technical side of it is adequately but not excessively covered?

Jeremy Wright (Conservative, Kenilworth and Southam)

Yes, I am as sure as I can be. The hon. Gentleman will appreciate that technology moves on and we attempt to keep pace, but of course the images that we are talking about here are images in any form that are found in the possession of the individual. Work is ongoing with my colleagues in the Department for Culture, Media and Sport to look at some of the issues that the BBFC witnesses put before us last week, particularly around video on demand. There are points of discussion there that do not, I think, properly fall within the parameters of the Bill, but I can assure the hon. Gentleman that they are being worked on.

Finally, as I have stressed, the Government’s proposal continues, in the manner of the original offence, to target the most extreme images and those that cause the most concern. It is not the intention to capture images that could depict relatively low-level acts. I hope, in view of what I have said, that the hon. Member for Barnsley Central will feel able to withdraw his amendment.

Dan Jarvis (Labour, Barnsley Central)

As I said, the amendments were tabled in good faith, to make possible the useful and constructive debate that we have just had. I am grateful for hon. Members’ contributions and for the Minister’s assurances. He is absolutely right: there is a difficult balance to be struck, and the matter is one on which opinions will differ, but I think there is widespread agreement in the Committee and across the House that action is needed, and I am pleased that the Minister has confirmed that the Government will be looking at the explanatory notes.

We look forward to working with the Government to ensure that the clause is as effective as possible, but given the assurances received, I beg to ask leave to withdraw the amendment.

Clause 17 - Secure colleges and other places for detention of young offenders etc

Jeremy Wright (Conservative, Kenilworth and Southam)

I beg to move amendment 16, in clause 17, page 18, line 18, leave out ‘in England,’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments 19 to 21 and 23 to 27.

Jeremy Wright (Conservative, Kenilworth and Southam)

We move now to part 2 of the Bill, which covers secure colleges. This group of amendments relate to the Secretary of State’s power to provide secure colleges under new section 43 of the Prison Act 1952, inserted by clause 17. As it is drafted, the Secretary of State has the power to provide a secure college in England only; amendment 16 will remove the territorial restriction and enable the Secretary of State to provide secure colleges in Wales as well as England.

Secure colleges will place education and training for young people at the heart of their regime, while taking a fully integrated, holistic approach to tackling offending behaviour. Subject to the success of the pathfinder secure college in the east midlands, our long-term vision is for a network of secure colleges across both England and Wales. In that way, we will extend the benefits of the new generation of secure educational establishments to all young people in custody.

We have been liaising closely with the Welsh Government about our plans for transforming custody. We recognise that young people from Wales can have distinct cultural and language needs, which must be met while they are in custody. There is also a need to ensure that services in the community that are devolved, such as education, health, social services and housing, can be integrated effectively with provision in secure colleges, so that young people receive the support they need on release. This has necessitated discussion with the Welsh Government on the development of secure colleges in the context of devolved services, and it is for that reason that we have waited until now before applying the secure college provisions in the Bill to Wales.

As the Committee will be aware, youth justice is not a subject that has been transferred to the Assembly. The Silk commission recently made recommendations, which we are considering, about the devolution of administrative responsibility for the treatment and rehabilitation of young offenders, but I am pleased to say the Welsh Government recently confirmed to us their support for the amendment of the Bill to provide for the creation of secure colleges in Wales. They have agreed that no consent motion is required for the amendments. We will continue to work closely with the Welsh Government on the implementation of our plans for secure colleges and transforming youth custody in Wales.

We have also tabled a number of technical and consequential amendments to schedules 3 and 4. I hope that the Committee will support the amendments.

Dan Jarvis (Labour, Barnsley Central)

I have just a couple of questions, as the group of amendments is largely technical. Most of the amendments, as the Minister said, are focused on extending the provision of secure colleges to Wales as well as England. The Bill did not originally include such provision, and I accept the Minister’s reasoning.

Has the Department any current plans for establishing secure colleges in Wales? Also, amendment 23, about local safeguarding children boards, appears to make a distinction between services that are directly managed and those that are contracted out. What is the rationale for that? I should be grateful if the Minister would deal with those points.

Jeremy Wright (Conservative, Kenilworth and Southam)

I shall come back to the hon. Gentleman on amendment 23 if the answer I give is not an accurate one, but I think that what we are doing is changing a variety of statutes where reference should now be made to secure colleges. The change will be technical, in the sense that we want secure colleges to be mentioned in all the relevant contexts. However, if I find I can helpfully provide more detail, I shall come back to the hon. Gentleman.

We do not have plans for a specific secure college in Wales. The hon. Gentleman will appreciate that we are at the point where we believe it is sensible to have a pathfinder secure college, and we have identified a site for that: it will be in Leicestershire on land that the Ministry of Justice already has. That is as far as the specific planning for sites has gone, but we think it is important to make it possible in legislation to roll out secure colleges when it appears sensible to do so.

Sarah Champion (Labour, Rotherham)

On a point of order, Sir Roger. I received a note from the Bill Clerk this morning. My amendment to schedule 4 is not on the order paper today. She thinks that it is a printing error and will investigate. She says that it will be selected for Thursday. If we reach schedule 4 today will it be possible for me to bring that back on Thursday, or should I busk it?

Roger Gale (Conservative, North Thanet)

I touched on this earlier; I think that the hon. Lady was otherwise engaged. If schedule 4 is reached then the amendment will not have seen out its notice, so it cannot be debated today. If schedule 4 is taken today, the amendment cannot be debated on Thursday, because schedule 4 will have been taken; so the hon. Lady will have to seek other ways to introduce it—perhaps on Report.

Dan Jarvis (Labour, Barnsley Central)

I beg to move amendment 32, in clause 17, page 18, line 18, at end insert—

‘(d) Secure Children’s Homes’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment 33, in clause 17, page 19, line 35, after ‘contempt’, insert—

‘(14) The Secretary of State shall make arrangements to ensure that sufficient places are available in secure children’s homes to enable young persons for whom detention in a secure children’s home is deemed more appropriate by the relevant authority than detention in a secure college or young offender institution to be so detained.’.

Dan Jarvis (Labour, Barnsley Central)

These probing amendments, tabled by my hon. Friend the Member for Hammersmith and myself, are intended to clarify the Government’s approach to the future of secure children’s homes. They deal with two important questions. First, what role, if any, will remain for secure children’s homes in the youth custody landscape once secure colleges are introduced? Secondly, how will the extremely vulnerable children the homes cater for be accommodated in the future? We hope that the debate will provide the Government with an appropriate opportunity to answer both questions.

I want to begin by discussing the role of the homes. Secure children’s homes are intensively staffed facilities, largely run by local authorities in partnership with other organisations. They are small by definition, typically with between eight and 40 beds. The adult-to-child ratio is very high, and their staff are highly qualified in specialist care and experienced at working with difficult children. They provide for 10 to 17-year-olds, including some of the youngest and most vulnerable in youth custody. They accommodate children looked after by local authorities, where courts have authorised that they may be detained for welfare reasons.

Overall, secure children’s homes are widely recognised as an important component within the youth custody sector. They cater for many children who simply could not be accommodated within secure training centres or young offender institutions, owing to the intense nature of their needs and difficulties. As things stand, however, secure children’s homes are not mentioned anywhere in the Bill. Amendment 32 would correct that by adding secure children’s homes to the list of institutions in clause 17 that the Secretary of State may provide for the detention of young persons. The absence of secure children’s homes in the Bill is reflective of the wider uncertainty about their future.

Sarah Champion (Labour, Rotherham)

I would like to speak a little more on this later, Sir Roger. However, does my hon. Friend agree that every one of our witnesses said that secure children’s homes were the best way forward and that they should be protected and should be an absolutely central part of the Bill?

Dan Jarvis (Labour, Barnsley Central)

My hon. Friend is right. The weight of the body of evidence brought to the evidence sessions strongly concurred with what she has just said. Again, we tabled these amendments in good faith, to provide us with the opportunity to have this constructive debate. I look forward to hearing what the Minister says about the point that my hon. Friend has made and about those that I will continue to make.

The Minister will know that the Youth Justice Board recently confirmed that 28 secure children’s home beds are to be decommissioned. That might sound like a small number, but it is significant in the context of institutions that are, by definition, very small. From 1 April 2014—a fortnight away—the Youth Justice Board plans to reduce the 166 secure children’s home places currently contracted to 138 places. That equates to a 17% cut in places across nine homes. That brings me to the second question, about the future accommodation of children who will no longer be able to access those places.

The Government’s support for maintaining secure children’s homes has been ambiguous at best. In the Government’s response to their own consultation, “Transforming Youth Custody”, paragraph 34 states:

“We accept that there is always likely to be a small number of the very youngest, most vulnerable and most challenging young people who will be unsuited to the mainstream provision in a Secure College and will require specialist custodial services. To cater for this population we are continuing to provide sufficient places in SCHs, while seeking to secure improvements in service and reductions in cost”.

That statement appears to give reassurance with one hand, but takes it away with the other. That is the reasoning behind amendment 33, which would require the Secretary of State to ensure that there are adequate places in secure children’s homes for the young people who need them.

Ministers have already made it clear that secure colleges will accommodate some of the children currently detained in secure children’s homes. Paragraph 33 of the Government’s response to the “Transforming Youth Custody”consultation states:

“It is our intention that all 12–17 year olds accommodated in STCs and some of those accommodated in SCHs will in future be accommodated in Secure Colleges”.

That presents a real risk that some of the youngest and most vulnerable children will be inappropriately accommodated in over-large establishments unable to offer the same high standard of care as secure children’s homes.

Concerns have been raised that large institutions are particularly damaging for the most vulnerable children. Some people have observed that both Jake Hardy and Ryan Clark—the two young boys who tragically took their own lives—were detained in the largest young offender institution in the country. We must take care in drawing lessons from cases that are still being looked at. The fact remains that, although 16 children have died in custody since 2000, not a single death has occurred in a secure children’s home. We might therefore be forced to speculate that the uncertainty about their future may have less to do with the results that they produce and more to do with how much it costs to produce them. It is no secret that secure children’s homes are more expensive than other forms of youth custody. That is to be expected for small units with their highly qualified specialists and a high staff-to-child ratio. The average cost per place in a secure children’s home works out at £212,000 per year, compared with £65,000 for a young offenders’ institution or £178,000 for a place at a secure training centre.

I will return briefly to the Government’s consultation, which said:

“We intend to withdraw from costly STC provision once replacement secure college capacity is available, but if an STC place over £30,000 cheaper is being described as costly, we can understand why secure children’s homes would appear to have few friends in Government at the moment.”

Mike Kane (Labour, Wythenshawe and Sale East)

Currently, 69% of young people reoffend, which is far too high. I agree with the Government on that, but is there any evidence that a secure college in Leicestershire will bring down that reoffending rate? Is there any evidence that the only needs of these children are educational and they do not have a range of complex social, emotional and welfare needs, often coming from traumatic abuse at home? Will a secure college help to deal with those issues and bring down reoffending rates?

Dan Jarvis (Labour, Barnsley Central)

My hon. Friend is right to question the evidence base. The evidence did not appear to be forthcoming when the Committee held its evidence sessions a week ago. That is precisely the point of having this debate, so that we better understand the evidence base that underpins this decision. There is a general concern that, in the context of securing children within the custodial estate, big is not beautiful. It is right that we have this debate, and I look forward to hearing what the Minister has to say about these issues.

Even the impact assessments produced for the Bill indicated that one of the rationales for introducing a secure college was to reduce the cost of youth custody. With that in mind, will the Minister clarify a number of issues for the Committee? Will he tell the Committee plain and simply the Government’s policy towards secure children’s homes? His Department has committed on record to providing sufficient places in secure children’s homes. What is the Government’s definition of “sufficient” in this context?

Finally, the Government have said that the detention of some children from secure children’s homes in larger secure colleges will allow

“a broader curriculum and range of services to be provided at a lower cost without any compromise in the safeguarding of young people.”

Can the Minister tell us how that will be achieved? What sort of qualifications will staff in a secure college be required to hold and how will the child-to-adult ratio compare with children’s homes? We hoped that tabling these amendments would provide answers to those questions. I am sure that the Committee will appreciate any reassurance the Minister can offer.

Sarah Champion (Labour, Rotherham)

I want to build on the points about size made by my hon. Friend the Member for Barnsley Central. I bring the Committee’s attention back to the evidence given by Sue Berelowitz, who said:

“The size of secure children’s homes means that there are high levels of watchfulness and vigilance, because staff are always around, so it is less likely that girls will come under the power of boys and all that goes with that. They are exceptionally vulnerable.”

My hon. Friend went on to ask her what she thought was the ideal size for a secure college, and she replied:

“If I can leave aside whatever something is called and just talk about a good size for a children’s prison, it needs to be small enough and with high enough staff-to-child ratios such that children do not feel lost and there is a degree of intimacy—if I can put it like that—so that it does not feel impersonal. These children have grown up in very difficult circumstances for the most part. I would not want to have 25 or 50. There is a secure children’s home that takes 25 children, which is almost bordering on what our secure training centres look like. The STCs are not an unreasonable size—the biggest takes around 90 children—which means that you can break the population down in smaller houses. The overall size feels manageable, and it is not daunting when you walk on to the site. Places like Hindley, for example, are also broken down into units, but when you walk into the Hindley site—it is the biggest children’s prison in Europe, but there are plans to re-role some of it—it is a very intimidating environment. The environment is equally as important as the size and staff-to-child ratios. There needs to be a degree of intimacy. Some children’s homes have as few as 10 or 12, and they tend to work well with troubled children, because of the amount of intense care that children can get.”––[OfficialReport, Criminal Justice and Courts Public Bill Committee, 11 March 2014; c. 12, Q14-15.]

Will the Minister give us an assurance that, if he goes ahead with the giant prison, it will be designed in such a way as to be broken down into small, more personal units, so that the secure feeling that there can be in children’s homes is replicated?

I have been to a secure children’s home in Sheffield, where there were about 15 children. The ratio of staff to children was 2:1, and there was a broad range of skills on offer, including teaching, psychological and nursing skills. However, about 50% of the children I saw were there for welfare reasons. They had been through horrific childhoods and had been acting out, and so had been moved to the secure children’s home specifically for their own protection, as well as to enable them to flourish as individuals in their own right. If secure children’s homes are not mentioned specifically in the Bill, I am worried that such facilities might disappear. Will the Minister assure us that such welfare places in a home-like environment will be protected? They are essential for those children.

Andrew Slaughter (Labour, Hammersmith)

It is a pleasure to serve under your chairmanship, Sir Roger. In the first year I was doing this job, I was the shadow Minister with responsibility for the youth estate and had the opportunity to visit a number of different institutions, including young offenders institutions and secure training centres, as well as secure children’s homes. I was impressed by the regime in the secure children’s homes that I visited. They often deal with extremely vulnerable young people.

I support the amendments—they are in my name, and even I cannot find an objection in that case.

David Evennett (Conservative, Bexleyheath and Crayford)

We can’t believe it!

Andrew Slaughter (Labour, Hammersmith)

If I keep going for long enough, I might find a flaw in my own argument. However, I want to press the Minister to look seriously at the amendments for the following reasons. First, the Bill is a bit of a leap in the dark in this area. At Justice questions today, we heard the word “pilot” several times—a word that I thought was now banned at the Ministry of Justice. Although we are talking about only one institution, it is a large one; we are talking about its taking a predominant part in not only the education but the incarceration of young people.

I emphasise the point made by some of the briefings that the provision is untried. I also emphasise the point made by some of my colleagues that, although education is extremely important, it is part of a package for vulnerable young people that might not be achieved. All the briefings that I have read and most of the witnesses we heard from during the evidence sessions expressed, at the least, serious concerns about the path that the Government are going down or the speed at which they are going down it. Concern was expressed not just by organisations that professionally advocate for children within the secure estate, but by the Magistrates’ Association, which is concerned that leading the charge, as always, is lowering the unit cost. Sadly, the unit cost is high in all young persons’ institutions. Perhaps the Government are right to try to lower that cost in some cases, but if the leading objective, alongside prioritising education, is lowering costs and that is being achieved either by—

Guy Opperman (Conservative, Hexham)

I am listening to the hon. Gentleman’s argument. I shall ask just two brief questions. Does he accept that the proposal will fundamentally reduce the financial burden on the taxpayer? More importantly, does he agree that slightly larger units—not huge units—give greater opportunity for education, rehabilitation and training than is possible in smaller units?

Andrew Slaughter (Labour, Hammersmith)

I agree with the hon. Gentleman, in so far as more can be done in relation to education. That is a feature of a number of different aspects that we could spend all afternoon debating, including the type of education provider that the Government currently favour and the facilities. Secure training centres were introduced, in part, to address that issue. The aim is laudable, but there are inevitably limitations, such as the fact that most young people, fortunately, spend not years but days and weeks inside.

It is all very well saying glibly but with good intention, “Our priority must be education and our second, or equal, priority must be lowering the cost to the taxpayer.” I do not think that anybody would quarrel with that, but we are looking at what the ignored or unintended consequences of doing that might be. The amendments are not about saying that there is no role for educational establishments, that one size fits all for the youth estate and that the measure is a bad idea per se.

Guy Opperman (Conservative, Hexham)

I should like the hon. Gentleman to reply to my two questions. First, does he accept that this will be a cheaper outcome for the taxpayer, regardless of merit, putting merit to one side? Secondly, is it the Labour party’s position that this is not the right way to educate young people in such circumstances? Or is the alternative true: is this the right way, but the hon. Gentleman prefers a different way?

Andrew Slaughter (Labour, Hammersmith)

On the hon. Gentleman’s first point, I accept that the Government’s aim is to do things more cheaply. However, the proof of the pudding is always in the eating. At the moment, we do not know who will run the schemes or how much they will rip the MOJ off, do we? So we will wait and see what happens. The corollary is how and why the proposal will be cheaper. Will it simply be cheaper on the basis of economy of scale, lower staffing ratios and a regime that is less supportive of young people? That may be appropriate for some young people.

On the hon. Gentleman’s second point, yes, we would all welcome the prioritising of education. The proposal may be the solution, but it is always better, or it is in most cases, to pilot such things. This is quite a big-bang approach; we are talking about an £85 million commitment.

The amendments are not about saying, “Don’t do this.” They are about saying, “Don’t throw the baby out with the bath water. Don’t say that existing types of provision, particularly secure children’s homes, which tend to be smaller, more intimate and more highly staffed and have more supportive regimes, can play second fiddle to secure colleges in this way.” I know that the Minister appreciates this point; he has visited more institutions than I have. He will be aware that, yes, those places deal with dangerous young people, in some cases, and people who have committed horrific crimes and young people whom, if they are to be rehabilitated and kept secure—by which I mean safe, as well as inside—during their period of incarceration, often need levels of support that are unusual, even within the prison system.

For those reasons, the Government should take a step back. They should not do what I am afraid the Secretary of State often does, which is to rush in blindly on such matters, thinking that he has come up with a solution that sounds good on paper and ticks some boxes, gets newspaper headlines and saves some money. I am simply asking for a slightly more responsible and reserved approach.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am afraid that I must resist the amendments. However, I welcome the opportunity to explain the Government’s position on the use of secure children’s homes for detained young people, because I think some misapprehension about it may have arisen.

As the Committee knows, the Bill will introduce secure colleges. We have indicated our intention to open a pathfinder secure college in 2017.

I am starting to suspect that the hon. Member for Hammersmith will never be satisfied by what this Government do. I may be being unduly cynical, but somehow I do not think I am. He said, in relation to probation reforms, that we ought to try them out in one location first and see how they work. Here we are, proposing exactly that in relation to secure colleges, and he is still not happy.

Andrew Slaughter (Labour, Hammersmith)

I think we are debating semantics here. When is a pilot not a pathfinder? When is a youth institution with capacity for 320 people—I think the Minister will admit that that is a large institution—a pilot, rather than a substantial part of the youth estate? He might as well say that his Titan prison is a pilot too, when we know in fact that it will be a dumping ground.

Jeremy Wright (Conservative, Kenilworth and Southam)

The hon. Gentleman would not expect me to agree with that, and I do not. I will say something about the scale of the institution in a moment.

The hon. Gentleman is right; we have made it clear, in our response to the “Transforming Youth Custody” consultation, that if the pathfinder proves successful, our vision is to roll out a network of secure colleges across England and Wales. We envisage that the vast majority of young people aged 12 to 17 in custody will in future be detained in secure colleges and benefit from the enhanced educational and rehabilitative services provided. I make no apology for saying, as I have on a number of occasions, that I think it is crucial that we do better than we have in the education of young people in custody. They are school-age children and we have an obligation to educate them. There are formidable challenges in doing so, as the hon. Gentleman rightly says, but that does not mean that we should duck that responsibility. Secure colleges are a way for us to seek to address it.

Sarah Champion (Labour, Rotherham)

The Minister mentioned 12 to 17-year-olds. Is there any wiggle room for him to consider age 15 and upwards? All the witnesses we heard said that they felt that 12 is too young. I understand that the Minister will try to segregate the ages as much as possible, but I still worry that, when it comes to canteens and playgrounds, there will still be a crossover. Putting a 12-year-old in the same environment as a 17-year-old could be extremely threatening and damaging. Will he consider raising the lower age threshold?

Jeremy Wright (Conservative, Kenilworth and Southam)

We will come on to precisely that issue, if not in the next group of amendments, then possibly the one after that. I would hate to spoil the surprise as to my attitude to it.

I accept that, whatever we do on the basis of a secure college model, it will be important to think carefully about how we accommodate and educate young people of different ages and with different needs. That will very much be part and parcel of the way in which we approach secure colleges.

However, as my hon. Friend the Member for Hexham was saying earlier, it is perfectly right for us to think about the best way to deliver the breadth of services—not just education—to young people with a range of needs. The best way to do that might not be in small units, because it would be difficult to bring about the economies of scale that we need and the breadth of different types of services that may be required.

I agree entirely with the hon. Lady that design will be crucial. The way in which we design such institutions will be vital in giving the right impression to those who step across the threshold as to what type of activity goes on there. The Secretary of State’s view of the matter has always been that we should move from the point where we were essentially adding education to detention facilities, to a point where we enforce detention in an education facility. There is a real difference of approach, and we hope that the design of the buildings and the general environment will reflect that. I hope that, when she starts to see the way that secure colleges might look, she will see that too.

Sarah Champion (Labour, Rotherham)

Will the Minister therefore please make a commitment to employing a proper RIBA architect, rather than simply going for a design at the cheapest cost?

Jeremy Wright (Conservative, Kenilworth and Southam)

Fortunately, I do not get to select the architect, so I will not go into what qualifications they may or may not have, but the hon. Lady can rest assured that both the Secretary of State and I are keen to ensure that the design of the buildings is of the highest quality and that it gives the clear impression that this is a different kind of institution from those that we currently have.

Guy Opperman (Conservative, Hexham)

May I attempt to allay the hon. Lady’s fears by pointing out to the Minister that we would not be the first people in the world to have come up with the idea for a secure college? There are other examples around the world that we could use as a model. They are set out in copious detail in the Centre for Social Justice report “Locked Up Potential” and other academic essays on this subject. Anything that can create an environment where education is paramount, given more than 50% illiteracy and more than 50% drug abuse, must surely be the way ahead.

Jeremy Wright (Conservative, Kenilworth and Southam)

I agree with my hon. Friend. He is right, of course. There are very few genuinely new ideas. None the less, we will always look for examples around the world that we can draw inspiration from.

Andrew Slaughter (Labour, Hammersmith)

Will the Minister give way?

Jeremy Wright (Conservative, Kenilworth and Southam)

Speaking of drawing inspiration!

Andrew Slaughter (Labour, Hammersmith)

It is right that there is nothing new, but that does not mean that the Government still cannot get it wrong, even if it has been tried many times before. We have had borstals and STCs. The Minister should not dismiss the point made by my hon. Friend the Member for Rotherham. I will not name it, but I visited a secure training centre that was clearly designed and built for a different age group from that which it is now accommodating. One might say, “So what?” but the room and furniture sizes, which are part of the design and build specification, were wrong. Care taken with the infrastructure and the signals that that sends out, and what provision is on offer there, will be absolutely crucial. Simply calling something a secure college and saying that education is a priority will not sort out anything.

Roger Gale (Conservative, North Thanet)

Order. Interventions are getting rather long. Interventions are interventions and speeches are speeches. There is a fundamental difference between the two, and I should be grateful if all hon. Members would recognise that.

Jeremy Wright (Conservative, Kenilworth and Southam)

Thank you, Sir Roger. I do not disagree with the hon. Gentleman’s intervention. I think it will be important to do all those things effectively, but what we are discussing in the Bill is giving the Government the opportunity to do all those things and to bring about legislative provision to enable secure colleges to happen. We think that that is the right thing for us to do. However, we also made it clear in the response to the consultation that we accept that it is likely that some detained young people—in addition to 10 and 11-year-olds, who we do not believe should be placed in secure colleges—will require separate specialist accommodation on the grounds of their acute needs or vulnerability. We are committed to continuing to provide separate specialist accommodation for that small group of young offenders.

Secure children’s homes currently provide places for the youngest and most vulnerable children in custody, as others have said, and they will continue to do so. We have recently entered into new contracts with nine secure children’s homes to continue delivering that provision for those who require it. Although the Bill provides for secure colleges, it does not seek to make any changes to the existing legislative provision relating to secure children’s homes.

Members have noticed that secure children’s homes are absent from the list of the types of youth detention accommodation that the Secretary of State may provide, as set out in the revised section 43 of the Prison Act 1952 that is included in clause 17. That is because local authorities have the power to provide secure children’s homes, and the Secretary of State does not and never has had such a power. Similarly, it is for local authorities to provide sufficient places as are required in secure children’s homes, and we think it is right that they retain responsibility for that.

The Secretary of State has a broader duty to ensure that there are sufficient places in youth detention accommodation for young people remanded or sentenced to custody. In fulfilling that duty we continue to contract places in secure children’s homes for the young people who require them.

Andrew Slaughter (Labour, Hammersmith)

I take that point, but does the Minister therefore anticipate any change in the use of secure children’s homes once secure colleges—either the pathfinder college or, if that meets approval, future ones—come into use?

Jeremy Wright (Conservative, Kenilworth and Southam)

We certainly anticipate that if we are able to get right all the points that have been discussed in the course of this debate, as I hope we will, secure colleges will be able to accommodate some of those currently accommodated in secure children’s homes. It therefore follows that we may see fewer people accommodated in secure children’s homes in future. Of course, as I hope I have made very clear, we do not think that we will ever get to the point where every young person within the relevant age bracket can be accommodated appropriately in a secure college. There will therefore continue to be a need for additional provision, and we will continue to contract with secure children’s homes to provide that.

It will of course be for the Youth Justice Board to decide on the appropriate accommodation in the case of each young person going into detention. That is as it should be. For those reasons, and with that reassurance about the Government’s intentions, I hope very much that the hon. Member for Barnsley Central will withdraw his amendment.

Dan Jarvis (Labour, Barnsley Central)

I am grateful for the opportunity to put some of our concerns about secure colleges on the record. This debate will continue throughout the second part of the Bill. It is of course right to focus on education, and of course we need to look at the cost. However, as has been said, we also need to look carefully at any unintended consequences of secure colleges, given that there will still be children who require that specialist level of support. I am also grateful for the opportunity to discuss the future of secure children’s homes, and for the clarity provided by the Minister. However, I am also mindful of the point that my hon. Friend the Member for Hammersmith just made about the future use of secure children’s homes. Having listened very carefully to what the Minister has said, we hope that the Government will reflect on the concerns that have been raised, both in the Committee’s evidence sessions and in today’s debate. I therefore beg to ask leave to withdraw the amendment.

Dan Jarvis (Labour, Barnsley Central)

I beg to move amendment 30, in clause 17, page 18, line 20, at end insert—

‘(2A) No person who is aged under 15 shall be detained in a secure college established under subsection (1)(c).’.

The amendment stands in my name and that of my hon. Friend the Member for Hammersmith. We tabled it to raise concerns regarding the age range that the Government have proposed for the young people who are to be accommodated in secure colleges. I am grateful to my hon. Friend the Member for Rotherham for her earlier trailing of this amendment.

We are all aware that children aged between 12 and 14 are significantly in the minority of the population of under-18s in custody. The majority of that age group are currently accommodated in small, local, intensively staffed secure children’s homes, which we have just discussed. According to the latest figures available, there were 53 young people aged 14 or under in custody. Of those, 32 were placed in secure children’s homes and the rest in secure training centres. The Committee will also be aware that existing young offender institutions only hold boys who are 15 or over. The Government are clear that secure colleges will hold children as young as 12, including some of the children currently detained in secure children’s homes. Paragraph 33 of the Government’s response to the “Transforming Youth Custody” consultation states:

“It is our intention that all 12–17 year olds accommodated in STCs and some of those accommodated in SCHs will in future be accommodated in Secure Colleges”.

The Committee will appreciate that this young age brings with it specific vulnerabilities that must be considered. The Government’s own consultation acknowledges that the very youngest, most vulnerable and most challenging young people will be unsuited to the mainstream provision in a secure college, and will require specialist custodial services. That raises a number of issues around the safeguarding of those young children. I am sure that the Committee will understand that there may be safeguarding issues if children as young as 12 are living side-by-side with much older children.

Sarah Champion (Labour, Rotherham)

At the beginning of his speech my hon. Friend mentioned the few young children who are currently in custody. I am sure he knows that in 2012-13, 96% of children in custody were 15 to 17-year-olds, which means that the number of very young, very vulnerable children is tiny. My great concern is that they will get lost in the system because they know that they are in the smallest minority when they go into such environments.

Dan Jarvis (Labour, Barnsley Central)

I am grateful for that intervention, which is useful in that it explains the motivation behind the amendment. We want to give the Minister the opportunity to reassure members of the Committee and those from whom we heard evidence about the youngest and most vulnerable children. I look forward to hearing what the Minister has to say about that particular cohort.

Safeguarding issues may exist if children as young as 12 are living side-by-side with much older children, especially when all such children, by their very presence in youth custody, may have significant issues and challenging behaviours. In our evidence sessions, Penelope Gibbs from the Standing Committee for Youth Justice raised serious concerns about the appropriateness of the risks associated with putting such a wide group of ages in the same institution:

“If you read inspection reports about YOIs and some of the behaviour issues with the older boys, we do not feel that younger children, aged 12 or 13, should be in the same institution as children who, in maturity terms, are so very different. All young people are vulnerable, but in terms of welfare, health and other issues, all the evidence is that the youngest children in custody are much more vulnerable.”––[Official Report, Criminal Justice and Courts Public Bill Committee, 11 March 2014; c. 34, Q69.]

Valerie Vaz (Labour, Walsall South)

Did Ms Gibbs not also address the issue of young girls being in the same institution?

Dan Jarvis (Labour, Barnsley Central)

I am grateful that my colleagues are helping to trail forthcoming amendments, but if my hon. Friend is patient, we will focus on that important point in the next group of amendments.

Beyond the initial pathfinder institution in Leicestershire—I appreciate that the Minister referred to it earlier—we are yet to discover what secure colleges will be built and where. Depending on how many the Government have in mind for the longer term, there could be just a few institutions throughout the country. A move to a smaller number of large institutions will mean that some very young children may be kept in custody a long way from home, causing problems with resettlement and during their time in custodial care. As it stands, however, we have limited information from the Government about how the scheme will be managed in future. The last thing that any of us would want would be for children of all ages to be inappropriately grouped together in the interest of driving down costs if no plan is in place for their provision.

What will be the staff to student ratio? What qualifications and training will secure college staff have? Will education be delivered in settled classes or across different age groups? How will the accommodation be arranged? What sort of intensive and enhanced provision will be provided for those in the 12-to-14 age group? Have the Government considered the impact that secure colleges will have on that age group? Have they not done so, it has been suggested to me that that would fail to meet the requirements of the public sector equality duty, as set out in the Equality Act 2010. As I hope is clear from my remarks, I would appreciate any further information from the Minister on those important points.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am grateful for what the hon. Gentleman has said. He is right to probe those points, which are clearly crucial to the way in which the secure college will operate. As I have made clear, the Government are committed to ensuring that all young people who are remanded or sentenced to custody have access to the education and training that will equip them with the skills, qualifications and self-discipline they need to build a life free from crime. We intend that secure colleges will accommodate individuals between the ages of 12 and 17, and we want under-15s to benefit from the new approach that I have described.

I recognise that, as the hon. Gentleman says, it can be daunting for children as young as 12 to be in the same establishment as 17-year-olds. I also accept that 12 and 13-year-olds often have educational and welfare needs that are different from those of 16 and 17-year-olds. However, 12 and 13-year-olds are already successfully accommodated alongside older children in both secure training centres and secure children’s homes, which have been much talked about this afternoon.

Sarah Champion (Labour, Rotherham)

I hear what the Minister says, but why do young offenders institutions only hold boys over the age of 15?

Jeremy Wright (Conservative, Kenilworth and Southam)

I am sure the hon. Lady understands and accepts that we will have failed if we create a secure college that looks and feels exactly like a young offenders institution. The point is to develop a different type of environment in which it is feasible to accommodate a broader range of ages. That is the whole purpose of developing this new model, and it is why we think it is important to look carefully at all the things we have already discussed on design, accommodation and education and other needs. We do not think it is sensible simply to recreate a young offenders institution or to have the same age group restrictions.

Andrew Slaughter (Labour, Hammersmith)

How many children are currently locked up? Of those, how many are 14 and under?

Jeremy Wright (Conservative, Kenilworth and Southam)

I do not have the figure in front of me, but I will try to get it for the hon. Gentleman as soon as possible. It is, of course, a small minority. In fact, I think his colleague may have given some figures earlier, and I have no reason to disagree with them.

Andrew Slaughter (Labour, Hammersmith)

The simplest questions are always the most difficult to answer. I was not trying to catch the Minister out. The last figure I saw, from last December, was just under 1,200 in total. His officials may have more up-to-date figures, but the relevance is that if the proportion is very small, and if the secure college has a capacity of 300 or 320, it gives us an idea of the size of the problem.

Jeremy Wright (Conservative, Kenilworth and Southam)

As I said, it is clear that those below the age of 14 are a small minority. Equally, we are talking about extending the provision of better-quality education and better-quality support and rehabilitation across a range of different needs. It would not be right at this point for us to exclude the possibility that a younger age group could also benefit, notwithstanding the fact that there are huge challenges in managing such a wide age group in a single institution. The point I am simply making is that the challenge of dealing with such a range of ages is already addressed by both secure training centres and secure children’s homes. Those establishments have demonstrated that, with the right facilities, services and safeguards, different age groups can be safely and effectively managed alongside one another, with services appropriately tailored to each group. Secure colleges will build on that and ensure that all young people, of whatever age, are protected and kept safe at all times with their needs being met.

Mike Kane (Labour, Wythenshawe and Sale East)

I just do not see the Government’s thinking. The Government almost accepted Building Schools for the Future but they stopped that programme, and now they are building secure colleges for the future without any thought of the consequences for small secure homes. Juliet Lyon, the director of the Prison Reform Trust, said that the best way forward for young offenders are:

“Small, local, intensively staffed units with a focus on taking responsibility, making amends to victims, gaining skills for employment”.

Frances Crook from the Howard League for Penal Reform said:

“The millions of pounds spent on this new facility would be better invested in community support for children”.

My hon. Friend the Member for Barnsley Central quoted the evidence of Penelope Gibbs, but she has said that simply focusing on education is “misguided” and will not address the mental health problems, drug and alcohol addictions and abuse that some young offenders have been through. We cannot just build a college to tackle those things when the professional evidence is that it is best when it is done locally, in small intensively staffed units.

Jeremy Wright (Conservative, Kenilworth and Southam)

It was certainly the view of some of those who gave evidence that it would be better to accommodate everyone in secure children’s homes. I do not think that any responsible Government can ignore the fact that it costs more than £200,000 a place to accommodate young people in secure children’s homes, nor the fact that when one looks across the board at the 1,200 or so young people currently being accommodated in detention somewhere, it would not be appropriate for all those young people to be accommodated in a secure children’s home.

In any event, as I hoped I made clear in the last discussion, we are not suggesting that there should be no place for secure children’s homes. There are some young people who are not suitable to be accommodated in the secure college model, but we believe that with the right measures in place, it is possible to accommodate that range of ages. As I said, that is already being done by both secure training centres and secure children’s homes at the moment.

Andrew Slaughter (Labour, Hammersmith)

In the context of the amendment, we are talking about under-15s, of whom I am sure we will find out shortly that there are a small number. Again, if we are talking about 12, 13 or 14-year-olds, who by definition will have committed unusual and serious offences for children of that age, they are likely to be vulnerable people. How will the Minister ensure their safety and security in those institutions? Presumably they will be educated separately. Will they also be housed separately?

Jeremy Wright (Conservative, Kenilworth and Southam)

The answer to the last point is yes. It will obviously be necessary to think carefully about the accommodation arrangements. The hon. Gentleman is right that there will be vulnerable young people in that age group; there will also be vulnerable people who are in an older age group. As I said—and I am happy to repeat it—it will be for the Youth Justice Board to determine what the appropriate place should be for the accommodation of each of those young people.

I return to the primary point. We do not accept that it is impossible to construct a facility to cover 12, 13, 14, 15, 16 and 17-year-olds, appropriately separated for accommodation purposes and with the appropriate separations for some educational purposes too. The advantage of covering all those people in one institution, and indeed of having an institution of sufficient scale, is the opportunity to bring in some of the services that a smaller institution would struggle to maintain. We think that that advantage should not be easily dismissed. As the hon. Gentleman is still keen for facts, I can tell him that in 2012-13, an average of 67 under-15s were in custody at any point, 45 of them in secure children’s homes and 22 in secure training centres.

Sarah Champion (Labour, Rotherham)

I hear what the Minister is saying, and I completely believe his sincerity about getting this right. However, the models that he has given where young children from the age of 13 to 17 are together are in much, much smaller units, where it is a lot easier to create a sympathetic family-home environment. I was blessed to go to a state middle school where we were 11 to 13, and it was still daunting for me as a 13-year-old to go up to the big school, so I have serious concerns about the measures. If 4% of children will be under the age of 15, we are looking at about 13 children out of 320 in his secure college, which puts them in a minority. That means that their environment will not be a normal one in which they can flourish.

Jeremy Wright (Conservative, Kenilworth and Southam)

I suspect that we will all be far too ambitious if we believe that we can create anything that constitutes a normal environment operating in the context of a detention facility, but I take the hon. Lady’s point. As I said, it is important to ensure that different age groups are separated in accommodation. We will have to work hard, not least on the designs that we have discussed, to ensure that the facility does not feel as intimidating as it otherwise might.

Andrew Slaughter (Labour, Hammersmith)

I was struck by the evidence that we heard in relation to boys and girls sharing joint facilities; I promise that I am not getting to the next amendment. The same argument could apply to young and slightly older children. The evidence that even with minimal contact, and unintended contact, there could be a degree of abuse and intimidation going on, could equally well apply there. It reinforced the point, which I think the Minister has just alluded to, that the design and organisation of these institutions will be absolutely crucial.

Jeremy Wright (Conservative, Kenilworth and Southam)

Yes, and on the last point I do not think there is any disagreement between us. I might have it wrong, but my recollection of the evidence that we were given was that the mixing of boys and girls takes place now in secure children’s homes, and secure training centres to a lesser extent. If it can be done now, one might argue that it can be done in a secure college too, but I think it is absolutely right that we should be cautious in relation to all these arrangements, and this will only work as an institution if we get the design features right. It is also correct that it will be for the provider of a secure college, as it is currently for the providers of young offender institutions, secure training centres and secure children’s homes, to fully assess the risks and put in place the safeguards and arrangements to ensure that all young people are properly protected.

As I have said, it is for the Youth Justice Board, with proper consideration of the individual needs and characteristics of young people, and advice from youth offending teams, to decide the most appropriate establishment in which to place a young person remanded or sentenced into custody. The Bill provides for secure colleges to accommodate boys and girls aged 12 to 17, but we have committed to continue providing separate specialist accommodation for those who require it, and the YJB will be able to place younger offenders there when it feels that a secure college place would not be right.

No final decisions have been taken on who will be accommodated in the pathfinder secure college. Those decisions will be taken closer to the opening of the pathfinder in 2017, and in the light of careful analysis of the needs of the youth custodial population and the equalities impacts on different groups. The same, of course, applies, as I am sure the hon. Gentleman will understand, to some of the other more detailed questions that he asked.

Mr Slaughter rose—

Jeremy Wright (Conservative, Kenilworth and Southam)

I give way for the last, last time.

The rest of the debate is in Hansard.