My Lords, my noble friend has accurately reported my remarks in Committee, which did not, he will have noted, commit me to bringing forward a government amendment; I have taken legal advice on that. However, I am grateful to him for the characteristically clear and reasoned way in which he has made the case for Amendment 9.
I said in Committee that my noble friend’s amendment seemed a practical suggestion and I undertook to take it away and examine the technicalities of the process. I am happy to say that on the issue of principle that the amendment raises, the Government are persuaded by my noble friend’s arguments.
There might well be circumstances in which a court dealing with breach concludes that the rehabilitation of the offender would be better addressed by a variation of the Secretary of State’s supervision conditions. The Government agree that it should be possible for courts to make a recommendation to the Secretary of State and that there should be a process for acting on that recommendation. This should apply whether or not a court decides to impose a sanction for breach. In other words, a court could impose a sanction and recommend that future supervision conditions be changed, or impose no sanction but make a recommendation.
That brings me to the question of how we best achieve this. I have sought advice on the legal position. There is nothing in law that would stop a court making a recommendation of this sort. A magistrate or district judge could do this simply by stating their opinion about the requirements that the offender is subject to when summing up.
An explicit provision for this in the Bill would therefore be unnecessary. It could be seen as restricting the discretion of the court to make recommendations in other areas where no specific power exists. It could also mean putting in place a new specific court process for making the recommendation, rather than the relatively informal process that would occur now.
To my mind, the more important question is how we put in place a process within prison and probation services for ensuring that a court’s recommendation is acted upon by those setting supervision conditions on the Secretary of State’s behalf. There is a precedent for this. Probation and prison instructions already set out a process for cases where courts make recommendations
about future licence conditions at the point of sentence. This involves probation staff present at court recording the recommendation and passing it to prison governors.
There is a presumption that governors should implement the court’s recommendation, except in cases where the offender’s circumstances have changed between sentence and release. I am happy to make a commitment that we will put in place a similar process for breach of supervision, with a similar presumption that those setting conditions should act on the court’s recommendation unless there are exceptional circumstances. To make sure that courts are aware of their ability to make recommendations to the Secretary of State, the Government will also discuss with the Sentencing Council whether it could include this in future guidance on dealing with breach of supervision.
In summary, I reassure my noble friend that he has made a persuasive case. I know he believes that it is better to get the processes right and get these things done properly at the sharp end rather than simply write things into the Bill. What I, as a layman, initially took to be a very good idea has been confirmed as such by the professional and legal advice that I have been given. I am not sure whether a Pepper v Hart judgment could be applied to what I have just said, but it is a very clear indication that we want to put the noble Lord’s very good suggestions into practical effect. I hope that I have reassured the noble Lord in that respect.
6.30 pm