My Lords, as the noble Lord, Lord Beecham, explained, the amendment seeks to require the Secretary of State to review the offender’s licence conditions before deciding whether a recalled determinate sentence prisoner should be subject to discretionary re-release, rather than automatic re-release, on the grounds that the offender is highly likely to breach a condition of their licence if so released. I presume that the aim is to ensure that recalled offenders have not been set up to fail through the imposition of inappropriate licence conditions and then suffer the consequences.
The purpose of this clause is to target those offenders who, while not presenting as a high risk of harm, have persistently failed to comply with probation supervision and any reasonable conditions that have been placed on their licence. More often than not, they are offenders who lead chaotic lives and persistently reoffend. They are offenders who are assessed as highly likely to breach their licence conditions on their re-release after 28 days in custody, thereby resulting in almost immediate further recall.
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We do not believe that there is any useful purpose to be releasing and then recalling in quick succession. By giving these offenders a recall subject to discretionary re-release, it underlines the need for their compliance and places the onus on them to demonstrate while in custody that they are prepared to co-operate with those responsible for their supervision in the community. In short, let me reassure the Committee that we want to ensure that supervision on licence is as effective as possible and supports the aim of keeping offenders in the community both to rehabilitate them and to reintegrate them into society, which is a principle that I know noble Lords share.
The focus of the clause is to make sure that those offenders who wilfully and deliberately flout their licence conditions are dealt with appropriately. That said, the clause contains precisely the safeguards that the amendment is aimed at and those alluded to by the noble Lord, Lord Beecham. It provides for the Secretary of State to focus on whether an offender is highly
likely to continue to breach conditions that are deemed necessary and proportionate. This would, for example, take account of any change in the offender’s circumstances that has for some reason rendered a particular licence condition unsuitable. But we must address the position where offenders wilfully breach their licence conditions and make sure that we protect the public from further offending. I hope that I have been able to provide some reassurance to noble Lords about the operation and intention behind Clause 7.
On the issue raised by the noble Lord, Lord Ramsbotham, on the Offender Rehabilitation Act, under that Act those serving less than 12 months who breach their licence conditions can be recalled to prison for a fixed period of 14 days. It is possible in some cases, for example, that where an offender has also received a couple of 14-day recalls, they will meet the new test for a standard recall and become liable to be held for the remainder of their licence period. Of course, with sentences of less than 12 months, the licence period will be very short, so the impact of receiving a standard recall will not be very different from continuing to receive fixed-term recalls. In other words, the impact of the new test for release following recall will be greater for those serving longer sentences, but for very short sentences it will be different from the impact of current recall provisions.
The equality impact assessment was raised by the noble Lord, Lord Beecham, and referred to by the noble Lord, Lord Ramsbotham. We have fully considered the equality impact of this clause. In the drafting, we are in compliance with our obligations under the Equality Act 2010.
Clause 8 makes provision to allow the test for recalled prisoners—the public protection test and the risk of further breach test—to be amended as well. Like the existing power, its exercise may prove necessary in response to a change in the nature and profile of the prison population, or where the wording of the test may no longer properly capture the cases that it is aimed at. I note the concerns raised by the noble Lord, Lord Beecham, about primary and secondary legislation, but in secondary legislation this power will be subject to the affirmative resolution. As noble Lords know, that will allow both Houses to have the opportunity to scrutinise any proposed change to the release test and Members will be invited to approve it.
Based on the comments that I have made and the assurances that I have given, I hope that, if not totally, I have in part addressed some of the concerns of the noble Lord.