My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I should begin by suggesting that Amendment 6 is, perhaps, not as well conceived as it might be, because it would provide for the court to decline to impose an electronic monitoring condition in certain cases. However, the court has no role in setting conditions for offenders released from custody on to licence after serving the required part of their sentence. This is a matter for the Secretary of State, through the governor. The parole board also makes recommendations as to licence conditions when the offender is subject to discretionary release.
In the case of an electronic monitoring condition imposed by virtue of an order made under proposed new Section 62A of the Criminal Justice and Court Services Act 2000, as inserted by Clause 7, this is solely a matter for the Secretary of State, through the governor. The amendment would actually have no effect. However, I understand the concern behind the amendment, which is that offenders should not be made subject to compulsory electronic monitoring when this is unsuitable for some reason, or when it is impractical. We recognise that there will be offenders who are unsuitable for compulsory electronic monitoring. For example, this may be because of physical or mental health issues, or because of a practical problem, such as not being able to make arrangements for the offender to recharge the battery in the tag.
These issues are, we suggest, already dealt with by the clause. The order-making power specifies that the Secretary of State may provide for cases in which the compulsory condition should not apply. I appreciate that this may not be immediately obvious from a reading of the clause, but the Explanatory Notes—although I take the comments of the noble Lord, Lord Beecham, about their inadequacy in some respects, and I shall come on to deal with that—are helpful in this regard, as indeed was my noble friend Lord Ahmad when he spoke on the matter in Committee.
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Perhaps this is the point at which to deal with the question of impact assessment. I think that it is generally accepted that electronic monitoring can have a useful role. It identifies the whereabouts of a potential offender and can act as a deterrent or assist in detection were offences to be committed. Thus there is no doubt about the merits of electronic monitoring in appropriate cases. It is difficult to assess its effectiveness in terms of reducing the prison population. It is hoped that if it acts as a deterrent it may in fact reduce the
prison population, but anything by way of an impact assessment would inevitably be something of a guess and would no doubt be criticised on that basis.
Subsection (3) introduces new Section 62A into the Criminal Justice and Court Services Act 2000. That new section allows for the Secretary of State to make an order requiring electronic monitoring in particular cases described in the order. However, it also allows the Secretary of State to make provision by reference to whether a person specified in the order is satisfied of a matter. So, it would be possible for the order to exclude offenders on an individual basis if the person specified in the order is satisfied that the offender has a physical or mental health problem which renders the offender unsuitable for the licence condition, or in cases in which a person is satisfied that it is impossible to make arrangements for the offender to recharge the battery in the tag. Relying on Section 62A(2)(b) and Section 62A(3)(c), the order could provide that an electronic monitoring condition must be imposed otherwise than in such cases.
I hope that this provides the necessary reassurance that the clause makes provision for the concerns which lie behind the amendment, so that compulsory electronic monitoring will not be used inappropriately. I am grateful to those who put down the amendments for the opportunity to elaborate and, I hope, to clarify that.
Amendment 7 would require outsourced electronic monitoring services providers to make information available as if they were subject to the Freedom of Information Act 2000. This would be achieved by a requirement in the code of practice to be issued under a new Section 62B of the Criminal Justice and Court Services Act 2000, to be introduced through Clause 6 of the Bill. Similarly, Amendment 120 would extend the Freedom of Information Act 2000 to providers who have entered into a contract with the Secretary of State to provide or run secure colleges under Schedule 6 to the Bill. It would do so directly, rather than via a code of practice. In summary, both amendments would require private providers to make information available both in response to FoI requests and proactively through publication schemes.
As my noble friend Lord Ahmad of Wimbledon made clear in Committee, we recognise the concerns that exist about the status of private sector contractors under the Freedom of Information Act. Pausing there, the noble Lord, Lord Beecham, made reference to the difficulties—to put it mildly—with G4S and Serco. In effect, he posed the question as to what we have done to guard against a repeat of the overcharging scandal. My answer is that lessons have been learnt, the new contracts will be subject to robust contract management from the outset and under the new arrangements, the Ministry of Justice will have far greater oversight over costs and charging than previously, with direct access to supplier systems to increase transparency.
We recognise the concerns that exist. As noble Lords may be aware, this issue was considered during post-legislative scrutiny of the Freedom of Information Act 2000 by the Justice Select Committee in 2012. We are already taking steps to address these concerns in ways consistent with that committee’s recommendations.
Rather than favour the formal extension of the Freedom of Information Act, the committee recommended that contractual provisions be used to ensure openness. The committee was of the view that,
“contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act”.
It also believed that,
“the use of contractual terms to protect the right to access information is currently working relatively well”.
We intend to issue an expanded code of practice under Section 45 of the Freedom of Information Act to promote transparency about outsourced public services in response to FoI requests. This approach represents an appropriate balance between transparency and minimising burdens on business.