My Lords, I shall speak also to the Question whether Clause 8 stand part of the Bill.
This amendment refers to the provisions in Clauses 7 and 8 dealing with the test for release after recall in the case of determinate sentences. The amendment requires the Secretary of State and the Parole Board to consider, in addition to other factors currently applicable in determining whether a recall prisoner is suitable for automatic release or rerelease when subject to discretionary release, whether the offender is “highly likely” to breach his licence condition. That is the thrust of the Bill as it stands.
At present, the principal consideration is whether release would involve a risk of serious harm to the public. Clause 8 empowers the Secretary of State to change the test by means of an order subject to affirmative resolution. Left as it stands, the “highly likely” test looks to be subjective, and that impression is enhanced by the failure to consider and provide for factors which might contribute to the outcome of a decision to release.
Similar issues arise in relation to the new offence of remaining at large after recall in Clause 10, to which we will come later. As in that case, what is missing is an assurance that the necessary support will be given to vulnerable offenders, especially those with, for example, mental health problems or learning disabilities which
seriously impair their capacity to understand even common terms such as “victim” or “breach”, as affirmed in the helpful briefing provided by the Prison Reform Trust. A substantial proportion of prisoners suffer from conditions that affect their capacity precisely to understand the conditions that might be laid upon them or otherwise to conduct what for ordinary citizens would be a simple lifestyle.
The Prison Reform Trust points out that conditions in relation to release and supervision need to be appropriate to the intellectual ability and understanding of the offender in order to comply with the obligations of the Equality Act 2010. It is unclear whether the Government have considered the applicability of the Equality Act to this provision and whether they consider that the provision passes the test.
Amendment 15 would therefore require the conditions in a person’s licence to be reviewed and amended from time to time to ensure that the person is able to comply—that is, that he has the faculties to allow him to comply—and that will usually involve the provision of relevant support for the prisoner in preparing for release and during the period of release. Amendment 16, which we covered earlier, would require the Secretary of State to,
“consult with the Parole Board about the resources”,
and report to Parliament on them, required to deliver that degree of support.
Clause 8 is an unsatisfactory provision inasmuch as it empowers a change in the test by secondary rather than primary legislation, as I pointed out at Second Reading. The noble Baroness, Lady Linklater, who is not her place, put the case even more strongly. She said that the clause gave the Secretary of State,
“an unacceptable degree of power”.—[Official Report, 30/6/14; col. 1593.]
She said that, for that reason, she hoped the House would join her in a stand part Motion in relation to Clause 8, thereby restoring the current position, which is that change should be effected by primary legislation. It is regrettably a notable feature of this Bill that, as Justice points out, it creates no less than 30 new delegated powers, of which only eight require approval by affirmative resolution.
That is particularly objectionable in a case where individual liberty is at stake. Albeit that it is conditional liberty because it is release on licence, such is the case with the provisions that we are now debating. I hope very much that the Government will reconsider this. Perhaps, the Minister could indicate what the Government take to amount to the conditions of a test of high likelihood that the Bill expresses as a condition.
There are therefore two grounds for my amendments. The first is the requirement to ensure that the individual can cope with the conditions, and be prepared for them and supported in them. The second is to do with the parliamentary process to ensure that there is proper parliamentary scrutiny by way of primary legislation before changing a test which will interfere with the liberty of the subject. I beg to move.