Contribution
My Lords, repeated reference has already been made to the independence of the judiciary and to the need to allow the judiciary full discretion in the matter of sentencing, but the provisions in the Bill at Clauses 11 and 12 erode these principles and put the whole issue at risk. The requirements in these clauses will remove a degree of judicial discretion, transferring certain sentencing powers from the courts to the Probation Service, and ultimately, of course, to the Government.
We on these Benches believe that the judiciary, who are specifically trained and appointed, and not probation officers, are best equipped to make decisions on sentencing. Clause 11, as drafted, removes the requirement to specify the maximum number of activity days to be undertaken as part of a community order or a suspended sentence order. The Government’s intention appears to be to create flexibility for probation services, so that they can gauge and tailor the number of days that offenders must complete.
Of course, we appreciate that, at present, there is a discrepancy between the maximum days of activity ordered by the courts and the number completed in reality. But nowhere in the Bill does there appear to be, once the initial sentence order and length are passed, judicial oversight of the number of days that probation officers may then set; nor does there appear to be any minimum threshold or expectation of participation specified in the Bill.
Putting this conferral of sentencing power on to the Probation Service creates an obvious misalignment of, among other things, incentives. Overworked probation officers, already contending with quite unmanageable case loads, are liable to be motivated not only by what is right for rehabilitation and public safety but by what is administratively possible. The unavoidable consequence is that the number of activity days ordered will be determined by capacity pressures within the Probation Service rather than by the rehabilitation requirements of individual offenders. The clause, as currently drafted, could enable an offender to engage in little or no meaningful rehabilitative activity whatever. Such an outcome would, of course, be a betrayal of victims and simply an illusion of justice.
On the other hand, the judiciary are trained and entrusted to assess evidence, consider proportionality, and understand risk and the need to balance public protection with rehabilitations. It is in these circumstances that we give notice of our intention to oppose Clauses 11 and 12 standing part of the Bill.
Amendments 49 and 50 seek to remedy the issue of probation officers operating in a quasi-judicial capacity. Amendment 49 would ensure that the court specifies a minimum number of days required under probation activity requirement. This would mean that, rather than setting a maximum threshold, which is seldom met in practice, there would be no ambiguity for officers or offenders over the number of days that must be completed. This is a simple and practical proposal that has the effect of dealing with the impact of Clauses 11 and 12.
Amendment 50 would clarify in statute that, where activity days are to be set for offenders, the number of days must always be set by the court itself. Without these amendments, decisions relating to punishment will, effectively, be delegated from the court to the Probation Service, rather than being determined at the point of sentence by the judiciary, and we believe it is essential that it should remain in the hands of the judiciary.
I turn briefly to Amendments 125 and 126, which concern early termination of community orders and suspended sentences. These amendments would provide that a court may not terminate such orders early, unless a specified minimum proportion of rehabilitation days has actually been completed. This would prevent the unacceptable scenario in which an offender could be released from requirements without having undertaken the substance of the sentence that was originally imposed.
Again, at present, there are no checks or balances under the Bill to ensure that this is not the case. These amendments would ensure proper accountability and preserve the authority of the sentencing decisions made by the court, and they would also provide probation officers with a degree of flexibility. I hope that the Government recognise the constructive nature of these amendments.
We all recognise the intense pressure under which prisons and probation services currently operate, but the response to systemic problems cannot be to weaken judicial powers or diminish meaningful sentencing. Offenders must not be permitted to slip through the cracks in a system that is stretched to its limits. It is our duty in Parliament to reinforce judicial authority, not to erode it. It is for these reasons that I urge the Government to reconsider the implications of Clauses 11 and 12, and to recognise the importance of the amendments that have been tabled. Judicial sentencing power must remain with the courts, and I hope that the Government will listen to these concerns and engage constructively on this issue.