Amendment 208A

Police, Crime, Sentencing and Courts Bill - Committee (8th Day) – in the House of Lords at 4:04 pm on 15 November 2021.

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Lord Blunkett:

Moved by Lord Blunkett

208A: After Clause 115, insert the following new Clause—“Review of the arrangements for the resettlement and supervision of prisoners serving sentences of IPP: effectiveness(1) Within six months of the passing of this Act, the Secretary of State must lay a report before both Houses of Parliament on the effectiveness of the arrangements for the resettlement and supervision of prisoners serving sentences of imprisonment for public protection (“IPP”) released on licence.(2) The report must include, but not be limited to—(a) an assessment of the factors underlying the rates of breach and recall of prisoners serving sentences of IPP released on licence, and what could be done to address them, including—(i) the effectiveness of the arrangements for the preparation of prisoners serving sentences of IPP to be released on licence, including the adequacy of information and guidance for prisoners on licence provisions, breach of licence and the risk of recall;(ii) the adequacy of existing probation service guidance on breach and recall;(iii) whether more use could be made of alternatives to immediate recall to custody including electronic tagging;(iv) the extent to which a failure to properly support and supervise prisoners serving sentences of IPP on release is contributing to the high proportion of this group breaching the terms of their licence and being recalled to prison.”Member’s explanatory statementThis, along with another amendment after Clause 115 in the name of Lord Hunt of Kings Heath, is a probing amendment intended to require a review of the arrangements for the resettlement and supervision of prisoners serving sentences of IPP.

Photo of Lord Blunkett Lord Blunkett Labour

My Lords, in moving Amendment 208A with its proposed new clause, I give my wholehearted support to the other amendments which have been laid, to which I have appended my name, and a strong encouragement that we build on the alliance that has been put together. I thank noble Lords and, where they have them, their staff—and mine—for the terrific co-operation that has emerged over recent weeks. I give apologies from the noble and learned Lord, Lord Clarke of Nottingham, who wished to be here but has a medical appointment. Members of this House will recall that the noble and learned Lord was Secretary of State for Justice when the IPP proposal was set aside and the 2012 abolition of that sentence agreed by the two Houses of Parliament.

At the time, I took the late and much lamented Paul Goggins to see the noble and learned Lord, Lord Clarke, to discuss what might be possible as a rapid wind-up of the consequences of the original Act, part of which is my responsibility and which I want to speak about in a moment. The noble and learned Lord has reflected with me on a number of occasions, as he did on that occasion with Paul Goggins, who had been a Prisons Minister and the Minister of State in Northern Ireland responsible for the prison service there, on the massive political challenges in getting agreement. I hope that this afternoon we can take a step in finding a way forward almost 10 years later, when so many prisoners still find themselves subject to the original imprisonment for public protection.

I thank the Prison Reform Trust, the Howard League and many others for their advice. I will take a moment to thank Frances Crook for her many years of dedicated commitment and service in the cause of reform. Frances, who retired at the end of October, will long be remembered as a beacon for her commitment and dedication. But in an area which is so unfashionable and difficult to gain the public’s attention in, you also really need the utmost stalwart tenacity to carry it through. I particularly want to offer my appreciation and thanks to campaigners, individuals and families for their understanding, determination and tenacity, particularly the campaigning group UNGRIPP: Shirley Debono and Donna Mooney have been with me for almost as long as I can remember in trying to put right something which, as I mentioned a moment ago, I had a hand in getting wrong. The remarkable coalition that exists inside your Lordships’ House and outside, should surely give the Government the cover and courage to take steps now that will put wrongs right and ensure that we have a journey—a road to travel—for the future.

I want to refer briefly, because I am aware of the enormous pressure on time for the Bill, to how we got here in the first place. Back in 2003, with the Criminal Justice Act’s provisions on sentencing, we thought—this was held across both Houses at the time—that the steps we were taking would be beneficial rather than ending up with the disaster, let me call it that, which has occurred over those subsequent 18 years. The intention was, first, to put right a wrong which existed with those who were on indeterminate sentences—they were not called that, but that is what they were—who had no route out because the therapies and courses, or the journey as I like to call it, were not present.

For many years I have been trying to help a prisoner called David McCauliffe, who was sentenced for the second time in his life, that time for seven years, and is still in prison. He was sentenced at the end of the 1980s for a crime that undoubtedly created unsafe conditions for the public at the time but fell short of rape or murder. He is still in prison today after 33 years. The longer he has been in, the more difficult it has been for him to show he is safe to be released. Many IPP prisoners find themselves in that position today.

The intention was that there would be a route for those caught in that trap, like David McCauliffe, to find a way forward. At the same time, there have been a number of incidents where people who were known to be unsafe—they had declared their intention to commit further heinous crimes such as kidnap, rape and murder—were allowed out without any clarity as to how their behaviour was going to be monitored, and they were not on licence. That is why, going back to the Halliday report of 2001, the good intention was that there would be mechanisms put in place to supervise and support—I emphasise “and support”—prisoners on release, to provide safety for the public and rehabilitation for those who were safe to be in the community. Both those elements went badly wrong with the IPP sentence.

First, we had not fully agreed with the Treasury for the resources to be put in place from 2005, after I had left the Home Office, which at the time had responsibility for what is now the Ministry of Justice and sentencing. Therefore, the resources were not available, and are still not, to do the job properly for those who needed rehabilitation and preparation for release. Secondly, we had not understood that, because those therapies and courses were not available, it was quite likely that cautious members of the judiciary would take a “safety first” view in applying an indeterminate sentence rather than a determinate sentence, which in some cases would have been a matter of two or three years, in the initial phases, rather than the 10 years plus originally discussed and envisaged. This was not applied as a mandated sentence because of the understandable requirement of the judiciary to have flexibility and be able to determine a sentence without it being laid down by Parliament.

So, here we are all these years on, with two strands having gone very badly, and the lessons that needed to be learned still in front of us today. I do not think any of us could have envisaged the impact—I certainly did not—of the recall provisions which were later strengthened and therefore made more draconian. This has led to a large number of prisoners finding themselves back in prison, sometimes for committing a crime that could be very minor and sometimes for a breach of their licence conditions. Out of the 3,000 people who are still in prison on IPP, 1,300 of them are there because of recalls. That is 100% up from 2016, five years ago. If we are not careful, that trajectory will lead to more prisoners being in prison on IPP on recall than are actually in prison for the original IPP sentence applied, which is a farcical situation and a tragedy for them.

More than 60 clinical and forensic psychologists, psychiatrists and criminologists have written to me, and I hope they will write to the Minister, setting out the trajectory from those early days, where the lack of therapies and courses led to caution and to the inability of prisoners to demonstrate that they were safe to be released; in other words, the failure to put the other mechanisms in place led to prisoners not being able to demonstrate their safety for the community. By not being able to do so, they spent so much more time in prison that the impact of that lengthy sentence and the hopelessness of not having an end date made their emotional, mental and psychological situation worse. The original sentence was supported by those who believed that the right kind of psychological conditions and help were essential to make them safe and, having undermined those conditions, we now have a situation where they are seen as unsafe; in other words, we have gone full circle, undermining the original intentions and, by doing so, having people in prison far beyond what was originally envisaged.

The modest Amendments 208A, 208C and 208E are part of a journey to the much more robust and necessary Amendment 208F, which would be the logical conclusion of trying to get this right and doing so very quickly. Here we are, all these years on, nearly 10 years since the abolition of the Act, and we still have 1,700 prisoners who have not yet been released and 1,300 who have been released but who have, within an average of 20 months, been recalled and are still in prison. That, on a traditional fixed-term sentence, would be a sentence of three and a half or four years, often for a minor breach. This is not just unequal and unjust, it is immoral. It is immoral because those individuals, who have already had their confidence and likelihood of being able to demonstrate their safety undermined, are further undermined by the conditions they found themselves in when they came out of prison.

Amendments 208A, 208C and 208E look at the conditions inside prison for preparing people for release—which would apply more broadly, so getting this right might improve the Prison Service delivery for prisoners as a whole—and the conditions people find themselves in when they come out. It is not surprising that, since 2012, the incidence of breach and return has grown exponentially, because Christopher Grayling MP was responsible for the virtual demolition of the National Probation Service. Nobody can blame the probation service, whose resources were undermined, and the connectivity that the Centre for Social Justice quite rightly laid out all those years ago, for ensuring that people were not returned to prison, because we had not put them in the right places with the right support in the communities they were returned to.

None of this undermines my culpability in not seeing this 18 years ago, in not understanding that it would be really difficult to get the resources out of the Treasury and that it would be difficult to persuade the public—having said this was a sentence which required the presentation to the Parole Board for safety—that we were absolutely sure all these prisoners coming through and who had minor breaches were not going to commit crimes. None of us can be sure of those aspects, but it is very difficult to say that to the public.

Having a coalition of the willing and cross-party and no-party support for real change, the Government now have an opportunity to demonstrate both their humanity and rationality in getting this right for the future. My party, and Members of the Conservative Party, the Liberal Democrats, Cross-Benchers and the Spiritual Benches are all committed to backing the Government in doing the right thing.

I have never resiled from wanting people who have committed heinous crimes to be put away for a very long time, or from having tough sentences where they are needed. But this situation cannot go on. We have to do something for the sake of the individuals and their families, and for the safety of the community, because the longer they are in prison on a suspended animation sentence or on licence, the more likely they are to find themselves unable to rehabilitate and live a normal life. When that happens, they are more likely to commit a crime. I got it wrong. The Government now have the chance to get it right. I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland 4:15, 15 November 2021

I commend the speech of my noble friend Lord Blunkett. I agree with every single word of it. I am as culpable as he is in relation to this. I was a junior Minister in the Home Office at the time, and the Lord Chancellor did not foresee the consequences of what the noble and learned Lord, Lord Brown, who I am glad to see in his place, described as

“the greatest single stain on our criminal justice system.”

Our purpose on these Benches is to participate in a coalition of people with a view to persuading the Government to make sensible changes to the regime to get rid of this injustice that the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett, have referred to. The amendments before the Committee today provide a number of sensible options, but we put them forward, or support them as part of that coalition, with a view to reaching agreement with the Government to do something about them.

I may try the patience of the Committee too much, but I will speak to the amendment to which my name is put, and then I will speak again indicating the Labour Party’s position on the whole range of amendments. The amendments I speak to at the moment, therefore, are Amendments 208A and 208C, which deal with the position in relation to those IPP prisoners who have been released, and what the Government should be doing about them. I add my thanks to those of my noble friend Lord Blunkett to the Prison Reform Trust, which has provided an incredibly valuable briefing to the whole House. I also thank the Howard League for Penal Reform, which has done the same; Frances Crook, who has, over a very long period, provided real guidance to policymakers on these issues; and UNGRIPP, a group of friends and prisoners who have suffered as a result of this regime.

I turn now to the probing Amendments 208A and 208C, which are in my name and that of my noble friend Lord Blunkett. He gave the figures. The basic proposition is that to reduce reoffending, energy and resources need to be devoted to ensuring that IPP prisoners who secure their release are able to live successful lives thereafter, avoiding recall to prison. That is what is best for society and for them. Without this, the current incidence of recall will soon, as my noble friend said, lead to a situation in which the number of people serving the IPP sentence may start to grow rather than decrease. From 30 September 2015 to 30 June 2021, the number of never-released IPP prisoners fell by 61%, from 4,431 to 1,722.

However, at the latest date for which I have figures, which is June 2021, there were 1,332 people back in prison having previously been released—more than double the number of five years ago. Recalled IPP prisoners who were re-released during 2020 have spent an average of 20 further months in prison before re-release. The hopelessness and despair that engenders is incredibly effectively described in the Prison Reform Trust’s report No Life, No Freedom, No Future. Its findings are based on data provided from Her Majesty’s Prison and Probation Service on recalls and re-releases and on interviews with 31 recalled IPP prisoners. A briefing from the Prison Reform Trust said:

“The report found that IPP prisoners’ life chances and mental health were both fundamentally damaged by the uniquely unjust sentence they are serving. Arrangements for their support in the community after release did not match the depth of the challenge they faced in rebuilding their lives outside prison. Risk management plans drawn up before release all too often turned out to be unrealistic or inadequately supported after release, leading to recall sometimes within a few weeks of leaving prison, and for some people on multiple occasions. The process of recall also generated strong perceptions of unfairness.

At its worst, the report found that the system … recalled people to indefinite custody” for what appeared comparatively trivial matters,

“defined needs (e.g. mental health) as risk factors … ignored the impact of the unfairness of the sentence on wellbeing and behaviour … could not provide the necessary support; and … provided no purpose to time back in custody or a plan for re-release.”

Not all IPP recalled prisoners endured that, but it was common enough to say that the system needed looking at overall. As I indicated, many IPP interviewees suggested that the recall decisions were taken too lightly. At most, 23 of the 31 participants had not been convicted of a subsequent offence when they were recalled.

What to do about it? To prevent the current situation continuing—and I am dealing only with people being recalled—there are basically eight things to do. First, the process for licence review should be automated, and the qualifying period reduced from 10 years to five. That is in line with Amendment 208D. Secondly, the test for recall should be changed. It should be that there is imminent risk of the person committing an offence causing serious harm, and that that risk cannot be managed in the community. For other things, such as not staying at the address named in the conditions, other measures should be thought about—for example, adjusted reporting requirements, use of electronic tags and curfews. Thirdly, where a person has been charged with a further offence, the normal criminal justice processes should apply, with a court considering whether remand in custody is appropriate for the new alleged offence. Fourthly, if a person is convicted of a further offence, the court should decide what happens to that person, not an official. Fifthly, if a person is convicted of a further offence and the court decides to recall them under the provisions of their IPP sentence, the Parole Board should be required to consider release alongside any considerations of discretionary release that attach to the new sentence—for example, an extended determinate sentence. Sixthly, IPP prisoners who have been recalled, not having received a new custodial sentence and not being re-released on the papers by the Parole Board, should have the right to an oral hearing if they so wish. Seventhly, if the Parole Board panel upholds the decision to recall, it must set a fixed date for a further review. Eighthly, all recalled prisoners should be entitled to annual reviews of their continued detention at an oral Parole Board hearing with free legal representation.

We, on this side of the Committee, are very much aware that proper measures need to be in place to provide public protection, but that has to be balanced against a system where once people on IPP are released, they are not recalled except when something significant has happened and there is proper and serious support. I commend these amendments to the Committee.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct, Chair, Sub-Committee on Lords' Conduct

My Lords, first, I commend, as others have, all those who have, in recent times, been building the road on which we are set today—none more so than the noble Lord, Lord Blunkett. For many years, I have urged, with no success thus far but with great hopes today, the reform of what remains of the IPP sentencing regime. It is in no way hyperbole to describe it, as I already have, as the greatest single stain on the justice system. Indeed, it is a deeper, growing stain because of the situation with the recalls.

The system was prospectively abolished by LASPO in 2012, but, nevertheless, some 3,000 of these prisoners remain in prison, as noble Lords have heard. By definition, they were sentenced before 2012. Some 1,700 have never been released, and now more than 1,300—a steadily increasing number—have been recalled after release, mostly not for reoffending but rather for some often comparatively minor breach of licence conditions, such as not giving their current address. This is very often because they do not have a satisfactory one.

In recent years, I have been to see many a Lord Chancellor about this growing injustice. All have then been moved on before they have had an opportunity, or certainly the political will, to deal with this. Several ex-Lord Chancellors—the noble and learned Lord, Lord Clarke of Nottingham, and Michael Gove prominent among them—have expressly recognised the deep injustices that these particular prisoners suffer. Many commentators in public life have made the same points, culminating in a stinging column, which I hope some noble Lords caught, by Matthew Parris on 31 July this year, urging the immediate reassessment of all of these people who have been so unjustly treated, remaining incarcerated under this long since discredited system.

I must remind myself that this not a Second Reading speech—I made one of those. Therefore, I shall not, for the most part, repeat the appalling statistics, such as the suicide and self-harm figures—twice as many IPP prisoners as even life prisoners self-harm—that mark this regime; nor shall I describe again the depths of hopelessness, despair and uncertainty that not only these prisoners but of course their families continue to suffer.

However, I emphasise that even my amendment, which the noble Lord, Lord Blunkett, described, rightly perhaps, as the most fundamental of this group, falls well short of the radical proposals that Matthew Parris put forward. I single out just two specific categories of unreleased IPP prisoner—those suffering the most conspicuously from this flagrant injustice. The amendment invites not their immediate release but merely some modest measure of relaxation in their extreme cases. It seeks that, once one of these unfortunate prisoners, by definition sentenced over nine years ago, as I said, has either served at least 10 years over the sentence that was recognised to represent his just punishment, or been locked up for longer than he would have been had he been sentenced to the “maximum determinate sentence” prescribed by law for his offence, then, instead of it still being up to him to prove that he can safely be released with no risk to the public—proving that negative is always most difficult—the burden would shift to the detaining authority, which would have to prove that he would present a serious risk to the public if released, to justify his continued incarceration. I hope that this might be some way of at least countering what one suspects and understands is a risk-averse approach on the part of the Parole Board. This is the only amendment in the group that is directed to giving some early relief to these two categories of the never released.

However, I also strongly support the other amendments: they would, variously, make for better preparation for the release of this cohort, under the existing scheme, and put some real controls on the present exorbitant provisions for recall. The majority concern licences and would go some way toward mitigating the harsher of these provisions, which, in fact, if one thinks about this, reflect or mirror the licence regime that applies altogether more appropriately to actual life-sentence prisoners—those who were justifiably sentenced and actually made subject to that specific life-sentence penalty. Of course, life-sentence prisoners are punished by that sentence for what they have already actually done, and they rightly remain subject to recall for life. But, by contrast, IPPs are being punished for what they might do in future, if they are released. This is preventive detention and, essentially, internment, a concept that we have previously always thought alien and inimical to our system of law.

These amendments would not merely make recall less draconian and lifelong than it is in most cases now; they would cure a particular anomaly, by which actual life-sentence prisoners can be released by order of the Secretary of State, whereas IPPs always have to have the agreement of the Parole Board. In short, it is necessary to legislate to change the law to allow the Secretary of State, on the return of recalled prisoners, to release them when he thinks that they should be released.

I turn to my final point. To anyone, whether the Daily Mail, unthinking politicians or others in the “Lock them up and throw away the key” school of thought, I ask this question. Suppose that, today, an IPP prisoner with a tariff sentence of less than two years—his offending having been adjudged to deserve less than a two-year period of detention as punishment—is still in prison more than 10 years after that two-year sentence has expired. This June, there were 207 in that category—there are hugely more who have served 10 years beyond their slightly longer tariffs. Suppose that that prisoner cannot persuade the Parole Board that he would pose no risk of reoffending if released. I ask this doubting group: must he remain incarcerated? Is that fair? What if that position remains, five, 10 or 20 years down the line? Are we really going to continue to sanction lifelong internment in this country? Not in my name. I urge these amendments on the House.

Photo of Baroness Burt of Solihull Baroness Burt of Solihull Liberal Democrat 4:30, 15 November 2021

My Lords, I support all the amendments in this group, but, for the sake of brevity, I will specifically address Amendments 208B, 208G and 208H, which stand in my name. Like the noble Lord, Lord Blunkett, I add my thanks to all the organisations and charities that have helped us so assiduously and briefed us.

In January this year, a young woman on an indeterminate sentence wrote to me. I will call her Ella; I will not use her real name to preserve anonymity. I said that Ella was a young woman: she was 25 when she first went to prison in 2007. Her tariff expired in 2010, but 11 years past that date, she was still in prison. She was at the time she wrote waiting for a parole assessment in April, by which time she would be 39.

I wrote back to her and said that I was not willing to take up individual cases, but, having read her story, I would address the issue if suitable legislation came along. That is why I am here today. I am here for Ella and the more than 3,000 people still languishing in prison under the provisions of this law, despite the IPP sentence having been abolished nearly 10 years ago.

I wrote to her a few weeks ago to tell her that I was going to raise the matter of IPP sentences under the Bill, but I received no response, which was odd. Having contacted the authorities at HMP Bronzefield, I was told that Ella had been released, but recalled because she had

“failed to attend an Approved Premises at a specific date and time as directed.”

She was therefore back in prison awaiting another Parole Board hearing—a yo-yo process which happens to the majority of IPP prisoners.

To be released they have to jump through hoops, in the form of various training courses—when those courses become available—but if they do not show a sufficiently positive response, they are not deemed fit to be released anyway. It quite reminds me of something by Kafka, or perhaps Catch-22. When the Parole Board in its wisdom decides an IPP prisoner is fit for release, if they infringe their conditions, such as by failing to attend an approved premises at a specific time and date, they can be hauled back to prison to start the whole thing all over again.

Indeed, the situation for IPP prisoners is often much bleaker than for lifers. We heard from the noble and learned Lord, Lord Brown, about some of the statistics. The biggest group of IPP prisoners still incarcerated today received tariffs of only two to four years. Some 96% of IPP prisoners are still in prison, after their tariff has expired. Their rate of self-harm, as we have already heard, is double that of lifers. It is a form of modern-day torture, fuelled by a constant sense of anxiety, hopelessness and strong feelings of injustice and alienation from the state. You would feel like that too, wouldn’t you?

Even when they have been released on licence, there is a constant sword of Damocles hanging over their and their families’ heads—that some contravention might trigger a recall. Because of this constant threat they are fearful of asking for help with problems, and families often bear the brunt of shielding and protecting the ex-prisoner for fear of recall.

That, in a nutshell, is why we need a better system. This one certainly does not work. Through my Amendment 208B, I am trying to suggest ways in which we can start removing the Catch-22 element from inside prison. I am proposing a review to examine the quality, effectiveness and availability of offender behaviour programmes, progression programmes and other opportunities to demonstrate reducing risk to the public; the availability of welfare and mental health support to help redress the damage that the system and the constant powerlessness and uncertainty of being an IPP prisoner creates; and, if and when prisoners have been recalled, the support available to help them pick up the pieces while they face another interminable wait for a Parole Board hearing.

That brings me to the Parole Board. There are many who believe that parole boards are becoming more and more risk-averse, because they conflate the behaviour of some prisoners with the increasing deterioration they experience arising from the treatment they received in prison, not their likelihood of reoffending. Therefore, Amendment 208B describes several measures aimed at improving the parole system and providing better support in the community to facilitate a safer release.

Amendment 208G would automatically bring the licence period to an end two years after release at the direction of the Parole Board, provided that the person has not been recalled in that period. The Secretary of State himself has already mooted the idea of reducing this period, and Amendment 208D in the name of the noble Lord, Lord Moylan, would decrease the automatic period of release from 10 years to five. Both amendments are a win-win, and if two years looks a little short, Amendment 208G also has safeguards to protect the public by allowing the Secretary of State to ask the Parole Board to extend the licence period by a further 12 months if they have concerns about the risk to the public. This would call time—literally—on the yo-yo way a prisoner can be recalled up to 10 years after release, potentially for the rest of their lives, even if they have committed no further offences.

Finally, Amendment 208H seeks to create an additional power of release on top of the mandatory requirement for a recalled prisoner to potentially avoid the necessity of having to languish in prison waiting for the next Parole Board hearing. This is a similar power to that already held for determinate sentenced prisoners, including those serving certain public protection sentences. I hope the Minister will be favourably disposed to this “levelling up” measure. After all, these prisoners have all been deemed fit for release at one stage.

All these amendments would contribute to radically reducing the final rump of victims and their families—including Ella—who are caught up in this cruel Catch-22 situation. Let us stop the damage we are inflicting on these prisoners, their families and ourselves as a country.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 4:45, 15 November 2021

My Lords, I shall speak briefly to my Amendment 208C. My noble and learned friend Lord Falconer eloquently introduced it. He took all my best lines—in fact, all my lines—so I will be very brief. This is a very modest amendment. It simply requires a review of the resources and support available for the resettlement and supervision of prisoners serving IPP sentences who are released on licence.

I very much hope the Government will listen to this afternoon’s debate. There is such a powerful force behind these amendments all around the House; it should provide enough cover to the Government to do the right thing. One comes back, time after time, to the comments of the noble and learned Lord, Lord Brown, when he described this situation as the greatest single stain on our criminal justice system. Surely the Government must respond sympathetically to what noble Lords are saying this afternoon.

All I want to do is emphasise what the noble Baroness, Lady Burt of Solihull, said about the Catch-22 situation that applies particularly to those who have been put out on release. First, if those people are honest about the fears and problems they have faced in prison, they can often risk being considered unsafe to be released in the first place. Secondly, if they ask for help with a mental health problem in the community, they could be assessed as being high risk and be recalled to prison. It is an extraordinary situation. If they enter into a new intimate relationship, they do so in the knowledge that an upset partner could make false accusations which would result in recall. How are people meant to live in that situation? As the authors of the Prison Reform Trust report say—it is an extraordinary and moving piece of work—it is hard to imagine how any of us could hold on to our sanity and self-belief in this situation. I plead with the Government to take note and be sympathetic to the plight of these people.

Photo of Lord Moylan Lord Moylan Conservative

My Lords, I shall speak to Amendment 208D in my name. I am grateful to the noble Lords who have lent it their support.

At Second Reading, I said that I considered it a shame to this country that there were still prisoners serving indeterminate sentences for the public protection. I do not propose to elaborate on this today, although I associate myself with the remarks made by noble Lords in the debate so far.

Some amendments in this group are probing amendments, but Amendment 208D seeks to change the law in a way which is helpful to the Government. It does not concern those in prison under an IPP, only those living in the community on licence; that is, those who have already been found by the Parole Board to be safe for release without presenting a threat to public safety. As noble Lords have described, currently these persons are potentially subject to a lifelong licence. They can be recalled to prison for a breach of the licence conditions at any point while the licence is in force. The only way in which the licence can be terminated is for the individual to apply to the Parole Board for a licence review after the expiry of the qualifying period. This is currently set at 10 years. The Government have stated that, in future, they wish these reviews to be automatic, and not to require an application from the prisoner.

On 21 July, in response to a Question for Written Answer from the noble Lord, Lord Blunkett, my noble friend Lord Wolfson of Tredegar said:

“From September this year, officials will refer automatically to the Parole Board the case of every offender serving the IPP sentence who has become eligible to apply for termination of his/her IPP licence.”

There is a problem. Close examination of the current legislation makes it clear that the review can be undertaken only on the prisoner’s application. Therefore, the Government cannot make an automatic referral to the Parole Board without the prisoner’s active co-operation. This somewhat holes the policy of automaticity. Amendment 208D addresses this deficiency by amending the Crime (Sentences) Act 1997 to require the Secretary of State to make an automatic referral to the Parole Board at the end of the qualifying period. If the application is dismissed, it can be made annually thereafter. The referral does not depend on the acquiescence or collaboration of the prisoner. It allows the Government to do what they have said they want to do. I hope the amendment will command their support. It does not prejudge in any way the decision of the Parole Board on that referral. The decision as to whether or not to terminate the licence remains entirely in its hands.

Noble Lords may wonder why a prisoner entitled to a review at the end of the qualifying period should be slow to make one on his or her own initiative; in other words, why is there a need for automaticity? It certainly seems strange not to apply for a termination of the licence. As noble Lords have explained, a person on licence under an IPP and who commits an offence for which an ordinary criminal might receive a short determinate sentence can be recalled to prison for an indeterminate term.

None the less, there are reasons why IPP prisoners do not apply for a termination of their licence. First, many do not know what the qualifying period is, nor what it means. Nobody is obliged to contact them to tell them. There is evidence of confusion, even among probation officers, as to the rules. In any event, many prisoners out on licence will not be in regular contact with a probation officer, since, although the licence lasts for a minimum of 10 years under the current system, supervision can be terminated after five. Many IPP prisoners out on licence after that many years simply do not want to take the risk of re-engaging voluntarily with a criminal justice system which they believe has treated them so unfairly. Automaticity is good and necessary. The Government agree and I hope this amendment will pass.

There is one more part to the amendment which is easily missed. I referred earlier to a qualifying period after which a review of the licence can be applied for. If this amendment passes, it will take place automatically. The qualifying period is set by law at 10 years. The very last words of the amendment would have the effect of reducing it to five years. As far as I know, this is not government policy. It is, of course, open to my noble friend to accept the part of the amendment dealing with automaticity, while rejecting the reduction in the qualifying period.

I hope that noble Lords will support me in pressing this on the Government. For those IPP prisoners who receive a short minimum term, the 10-year licence period is wholly disproportionate to the term that would have been attached to the equivalent determinate sentence, had one been imposed instead of an IPP. It can hardly be argued that it is necessary for public protection. As I said earlier, under this amendment, the decision whether or not to terminate a licence would remain with the Parole Board. Reducing the qualifying period to five years would simply reduce the length of time after which an individual out on licence would be entitled to a review. These people would be out on licence with the approval of the Parole Board and would have shown themselves to be safe in the community for five years. The number of IPP prisoners out on licence who are recalled after five years is, in any case, very small. Furthermore, the latest available data show that no IPP prisoner committed a serious further offence five years or more post release. Their supervision can be—and often is—terminated after five years.

I believe that everything argues in favour of a reduction in the qualifying period to five years. I hope that the Government will accept this part of the amendment as well. A person in this position—with a track record of living safely in the community for five years—needs the opportunity that we wish for all prisoners: to serve their sentence and return to the community to make a useful contribution to their own and to others’ lives.

Photo of Lord Bradley Lord Bradley Labour

My Lords, I shall contribute very briefly to this group of amendments. I fully support the views already expressed. I will not repeat them. I strongly commend the opening speech by my noble friend Lord Blunkett. He set out clearly the direction of travel which this House wishes to take.

I will speak briefly on Amendment 208B, particularly proposed new subsection (2)(b), which the noble Baroness, Lady Burt, has already eloquently described. It states the need for

“an assessment of the welfare and mental health support available to prisoners”— still serving an IPP sentence—

“including measures to reduce the risk of self-harm and self-inflicted death”.

I declare my interests in the register as trustee and vice-chair of the Prison Reform Trust. Again, I thank it for the excellent work it has done over a number of years in this area, culminating in the report by Edgar, Harris and Webster, entitled No Life, No Freedom, No Future. I think this sums up the mood of the House this evening.

People given IPP sentences are disproportionately more likely to have a pre-existing mental health problem and, obviously, that can be exacerbated by the fact that it is an indeterminate sentence. As the Ministry of Justice figures alluded to by the noble and learned Lord, Lord Brown, show, in 2020 IPP prisoners had one of the highest rates of self-harm, with 1,244 incidents per 1,000 prisoners, which is twice as high as the rate for determinate sentence prisoners of 620 per 1,000. It should be noted that in the Safety in Custody annual releases, self-harm and assault figures refer only to unreleased IPPs; incidents for recalled IPPs are hidden in the broader “recalled prisoners” category.

As we have heard, the fact that the imprisonment is indeterminate can leave people feeling hopeless and helpless yet afraid of seeking support which might prolong their imprisonment. Further, it can make it difficult for families to avoid relationship breakdown and estrangement from their relative serving the indeterminate sentence, as clearly evidenced in Annison and Straub’s 2019 report. Crucially, mental ill health can limit progress towards release, and serving an abolished sentence can make people feel—to quote Sarah Smart’s 2018 report for the Griffins Society—“disenfranchised, frustrated and distressed.”

We have heard clearly tonight why this appalling situation cannot continue. We must set the direction of travel tonight, and I hope that the Government will recognise that action needs to be taken. However, in the short term, people with mental health problems need proper assessment in prison so that their issues can be addressed effectively on their road to release from prison.

Photo of Lord Garnier Lord Garnier Conservative 5:00, 15 November 2021

My Lords, because of the quality and content of the speeches already made this afternoon, I hope I can be quite brief. I begin by declaring an interest as a trustee of the Prison Reform Trust and by commending the report that the noble Lord, Lord Bradley, just mentioned: No Life, No Freedom, No Future, the title of which brilliantly encapsulates the Kafkaesque state of affairs that we see when we consider IPPs. I also briefly thank Frances Crook, the retiring director of the Howard League, for all the work she did and for trying over the years to improve and inform the debate about what goes on in our prisons.

Our prisons are a secret world. When I was a Member of Parliament I once explained to a local journalist that I thought that all prisons should of course have walls to keep the prisoners in and to protect the public from the prisoners. However, all these prison walls should have windows in them so that the public could see in and learn what is being done on their behalf inside these prisons, but also so that the prisoners could see through those windows out into the world and into society, to see that if things went well for them and if their life, educational and employment prospects were improved by what they were doing and learning in prison, there was a world out there waiting to welcome them back. The journalist said, “Have you considered the public expenditure implications of building all these windows in those walls?” It is occasionally possible to lose the will to live when discussing something as complex as the state of our prisons.

Where it is not necessary to lose the will to live is when one listens to the noble Lord, Lord Blunkett, explaining and accepting—very publicly and bravely—that he got it wrong in the early part of his time as Home Secretary. I congratulate him. Most former Home Secretaries—most politicians—spend their post-government life rewriting history. This former Home Secretary has accepted that he got it wrong—I thank him for it—and he is now trying to assist us in getting it right again. I also congratulate the noble and learned Lord, Lord Falconer, on following on that particular train of thought. It behoves all of us in this Chamber, whether we are interested in this subject directly or indirectly, to mend this problem, and it is a problem that needs mending. The noble and learned Lord, Lord Brown, describes IPPs as the greatest stain on our justice system, and he is entirely right. However, it is a stain that we can remove.

I tabled Amendment 208E and have co-signed Amendments208F and 208G, but I could have co-signed any of these amendments. I simply want to see IPPs abolished. I want to see all those who are on IPPs at the moment either released under supervision or transferred to some other form of more humane sentence which gives those people hope, a life, an aspiration of freedom and a future which they can aspire to. At the minute, they are literally hopeless.

Some 14 or 15 years ago, when I was shadow Minister for Prisons in the other place when the Conservative Party was in opposition, I made a point in that job of visiting as many of the prisons in our system in England and Wales as I possibly could. There were then about 140 or 145 institutions—adult male prisons, adult female prisons, YOIs and secure training units—and I think I managed to get to about 70 or 75 of them. On a number of occasions I visited prisons where there were IPP prisoners, and the governors universally said, “This cohort of prisoners is the most difficult to manage because they have no hope.” They did not know when they were going to be released or whether they were going to be there for ever or whether they might be released in a year or two’s time. They had no idea which it was going to be.

One of the reasons I tabled Amendment 208E is that proposed new subsection (2) of that amendment describes the things within prison which are hopeless and entirely damaging to a fair justice system. Amendment 208E is one of several “six month report” amendments—I say in parenthesis that Amendment 208F is the one to go for if we are to do anything of a positive nature this evening. Amendment 208E, along with others of these “six month report” amendments, describes what is wrong with the system as it currently is. It asks

“whether there are sufficient places available for prisoners serving sentences of IPP on offending behaviour programmes”.

No, there are not. It asks

“whether prisoners serving sentences of IPP are able to complete offending behaviour programmes in appropriate time to aid progression milestones such as parole or recategorization”.

No, they cannot do that. You may be queuing up for a course while you are in, let us say, Maidstone Prison, and then you are churned—moved to another prison—so you will go to the back of the queue, or moved to a prison which does not have the relevant people to lead you on that particular course. Your mental and physical health records take months to follow you to your prison, and when they arrive and when the new governor or the new teaching staff of that prison to which you have been sent catch up with your request—guess what? You are moved to a prison in Bristol, Leeds, Liverpool or somewhere else. It is a hopeless state of affairs, and we should have done something about it years ago.

It follows that there are not sufficient places available for prisoners serving sentences of IPP in prisons providing progression regimes, for the practical reasons I have just pointed out. Is there availability of other opportunities for prisoners serving IPP sentences to enable them to progress and demonstrate reduced risk, particularly for those who have completed opportunities afforded to them by offending behaviour programmes and progression regimes? Of course not; it is a shambles—a cruel shambles.

Even on what I call ordinary life sentences, prisoners can do a particular course to demonstrate that, before long, they may become suitable for release on licence. However, if they do them within the first two or three years of their imprisonment, then remain in prison for another 14 or 15 years, all that they may have learned on that course all that time ago has long been forgotten, and all the people who have supervised them in prison have no corporate memory of what prisoner A, B or C learned all those years ago. So when they are reassessed after having completed the tariff, they fail the assessment. Can they get on a course again? Of course not. They are told, “You’ve been on one already. You’ll have to wait your turn, after all the other people”. The simple, practical organisation in our prisons is not fit to cope with this troubled and troubling group of prisoners on IPPs.

I will end on this point. The thing that a convicted defendant on sentence wants to hear is not a moralising judge telling them that they have behaved very badly and must never do it again, but the number—that is, how long they are going inside for. When they are sentenced to an IPP and hear the tariff of two or five or 10 years, that is the number that sticks in their mind among all the noise and clatter that is going on in their heads and in the courtroom. It is only when they get into the prison van—the sweat box—or get to the prison for their first reception that it dawns on them that the sentence does not mean two years; it means for ever unless they can do something to help themselves. Of course, because of the lack of availability of the factors that I have just addressed, it is almost impossible for that prisoner to help himself to improve, to see some chance of release and to come out as a better citizen again.

This obscenity must now end. I am sure that my noble friend the Minister and his government colleagues have it within them to do that, and I am sure that they will.

Photo of The Bishop of Gloucester The Bishop of Gloucester Bishop

My Lords, I add my voice to those who have already spoken in favour of these amendments. I declare my interest as Anglican Bishop to Her Majesty’s Prisons.

All the detail I was going to mention has already been carefully and expertly explained; again, I pay tribute to the organisations that have been named, including the Howard League, the Prison Reform Trust and UNGRIPP, for their excellent briefing reports and research. It resonates strongly with all the conversations I have with people in prison and family members who write to me or send me emails. The thing I am struck most by is the sense of hopelessness; many noble Lords have mentioned that. I am a proud patron of Prison Fellowship, whose motto is:

“We believe no one is beyond hope.”

We really need to listen to that in this debate.

The indefinite IPP licence goes against all the evidence about what enables people to move away from offending. As we have heard, people need to feel hopeful about their future. They need to have a plan to work at. As we have heard, the IPP licence stops people being able to look forward to a different future. It disrupts relationships and breeds anxiety, despair, hopelessness and alienation. Much more could be said, but I think it has all been said; I am heartened by the strength of feeling so apparent in your Lordships’ House.

I agree that this Bill provides a timely opportunity to address this enormous injustice of IPP sentences. I stand with those seeking to make these changes.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 5:15, 15 November 2021

My Lords, it is a privilege to follow the right reverend Prelate and precede, I think, the noble Lord over there. I just want to say, it all may have been said, but not by me. None the less, I will be brief because—it is not often I feel like saying this—it has been an absolute privilege to listen to today’s debate. Every point of morality, sensible practice and detail on this compelling menu of amendments has been made.

I want to make the briefest of pleas to the Minister, who has been a distinguished commercial barrister for many years; I, by contrast, have been a humble student of the miserable world of justice and home affairs. I also want to make a political point, of all things, in a debate that has been so rarely elevated above politics. I believe that today presents the beginning of an historic opportunity in our politics in this country. For most of my adult life—indeed, pretty much all of it—we have been embroiled in an arms race, particularly around incarceration, that has put us on a path which is more like the American one than a sensible path from anywhere else, let alone the path we might be on. How often do you hear someone of the stature of my noble friend Lord Blunkett say, “This was a mistake. Hands up; it is a fair cop. I am offering a bipartisan hand to help set this right”? I have not heard anything like that in justice and home affairs in my time as a student of these issues.

What is more, this is about rectifying a mistake that the Minister’s party already accepts was a mistake; that is why these sentences are no longer available to new offenders. The Minister, his party and his Government ought to be half way—indeed, three-quarters of the way—there already, in rectifying what my friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, called “the great stain”. We are so close. The Minister has an historic opportunity to begin to put this right. How often does an opportunity like that come about? The point about this stain is that it is wrong in itself, and it is terrible for all those hopeless people whom the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Burt, and other noble Lords mentioned. It is also a symbol of both injustice and the arms race I mentioned. That is why this opportunity is so precious and important.

It is ever harder to justify an unelected second Chamber—your Lordships’ House—nearly a quarter of the way into the 21st century but, if the Minister listens to the debate and does not slam the door closed to reason, today might just be enough for the moment.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I strongly support all the amendments in this group, not least because the cause of prisoners serving indeterminate sentences has been languishing ever since such sentences were formally abolished by LASPO in 2012.

I commend the tireless work of my noble and learned friend Lord Brown of Eaton-under-Heywood on their behalf. For nearly 27 years, since my first inspection as Chief Inspector of Prisons, I have been campaigning for changes to be made to the operational management structure of the Prison Service to bring it in line with the practice in every business, hospital or school: to appoint named people responsible and accountable for particular functions within the organisation concerned.

In the case of prisons, I have campaigned for separate directors to be appointed for every type of prison, and for certain types of prisoners—lifers, sex offenders, women, young offenders, the elderly, foreign nationals, and those serving indeterminate sentences. Imagine how easy it would be for Ministers interested in IPP, for example, to send for the relevant director and question him or her about what was happening or not happening to all prisoners in that category. I had hoped that somewhere in the 298 pages of this monstrous Bill, space might have been found for something so practical. However, as that is clearly not going to happen, I stringently commend the change to the Minister.

Photo of Lord Judge Lord Judge Convenor of the Crossbench Peers

My Lords, I find myself in a puzzle. The Government of the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Falconer, who introduced this form of sentence, have indicated that they would not have introduced it if they had known how it would work. A different Government, the coalition Government, of which the present Government formed the majority, saw the iniquities of it and Parliament got rid of it. Therefore, we now have a strange system. We have people in custody under the old system and people with the same record, the same problems, the same issues arising, who are not subject to the same sentences as each other. That seems rather strange, but in terms of an Act of Parliament, it is an utterly illogical situation for the Government now not to at least address the consequences of the sentence having been abolished in the 2012 Act.

Quite rightly, that was not made retrospective. I see that retrospectivity must be avoided, but we have been going on with the sentence that has been abolished for eight or nine years now. We all know that something must be done. I am not making a personal comment about the Minister, but everybody knows that it must be done, including Ministers in the Home Office and the Ministry of Justice. We must do something about it, in fairness and logically.

I added my name in support of the amendment tabled by the noble and learned Lord, Lord Brown, but all these amendments are asking one simple question: “You must do something, so will you now tell us what it is?” It is no good us being in a situation where “Something must be done” when “What is going to be done?” is the real question.

Photo of Lord Macdonald of River Glaven Lord Macdonald of River Glaven Crossbench

My Lords, I hope that the Minister can acknowledge that this is one of those comparatively rare occasions when noble Lords from all parties and none and from across the House have come together in the face of overwhelming evidence that a great public policy, in this case a great criminal justice policy, has gone disastrously wrong. It is beyond argument that IPPs have resulted in periods of incarceration out of any reasonable proportion to the gravity of the original crimes for which they were imposed. That is wrong. It is beyond any reasonable argument that these sentences are beyond any proportion to the risk that continues to be represented by any of the offenders to the public. That is wrong. There is the strongest evidence before the Government that IPPs are observably responsible for persistent and continuing injustice. The noble Lord, Lord Hunt, spoke very movingly about the reality of those injustices for those who are suffering under them.

I declare an interest as president of the Howard League and in doing so repeat what a number of noble Lords have said about the contribution made by Frances Crook. She has been a monumental figure in criminal justice, which is better today for her work than it would have been without it. The Government now have an opportunity to make a startling improvement to our criminal justice arrangements by the simple expedience of doing away with IPPs in their entirety; I agree with the noble and learned Lord, Lord Garnier, in this respect. The evidence could not be clearer. I support all these amendments and urge the Government now, in the face of this overwhelming case, to act.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I hope that when the Minister responds to this debate, he can put away the departmental brief and respond to two simple questions. The first is whether he accepts that the present system is unacceptable. The second, which the noble and learned Lord, Lord Judge, posed, is: what will the Government do about it? This is not a new problem. The Government have had years to think about the options and to consider what to do. The noble Lord is already a very distinguished Minister of Justice. Can he say what the Government will now do to address a manifest injustice?

Photo of Lord Hogan-Howe Lord Hogan-Howe Crossbench

My Lords, I have met a few of the people who these sentences are designed to control, and quite often they are terrifying. Some of the things that they have done are awful. However, the present situation is indefensible. It is unfair because, as the noble and learned Lord, Lord Judge, has said, they do not know how long they will be detained, and because many of them have been detained since before the law was changed. It is really trying to deal with the basic problem of dangerousness, which is very hard to define. Doctors cannot define the mental illness that they suffer from, as has been mentioned already. This should be addressed far more clearly.

There are only two ways forward. First, many of these amendments are talking about research in the future, but we need more research into the medical definition of the type of illness which we define as “dangerousness”, of people seeming likely to commit an offence in the future. This is not mentioned anywhere in the amendments. I recommend that there is good investment to be made there.

Secondly, what is presently indeterminate must be made determinate. I do not suppose that anyone has yet argued that all the people who are detained under these restrictions should immediately be emptied from the prisons on to the streets, but it is entirely possible to see a transfer of that risk either into the health element of prison control—Broadmoor or similar institutions—or a far better way of dealing with them within the community. To continue carrying the risk entirely within the prison estate in the numbers that are described is entirely wrong and I cannot see that it is defensible for this Government to continue doing so.

Photo of Lord Woolf Lord Woolf Crossbench 5:30, 15 November 2021

I was not intending to contribute to this debate, but I think decency requires me to do so, because looking in the past, I was the person who perhaps failed the noble Lord, Lord Blunkett, in persuading him at his time as Home Secretary of the extent of the error which he was making. I think he may remember that I did attempt at the time to dissuade him from this course, but I obviously failed and we see now the consequences of the biggest mistake made in the criminal justice system during my period as a judge. I hope that the House will bear in mind that, if a mistake of that nature is made, there is a huge burden on each one of us to try, as far as we can, to put it right.

This is the first time I have contributed on this subject and I apologise to the House for not doing so earlier. For reasons of health, I was not for a time taking part in the activities of the House, but I thought the House would like to know how I feel about this as a former Lord Chief Justice and the person who carried out an important report into prisons, which I hoped would provide a better system than we have now.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I am humbled by speaking at the end of an extraordinarily strong debate. It was eloquently and, as many have pointed out, courageously opened by the noble Lord, Lord Blunkett. He has been supported by many movers of amendments and others, among them the noble and learned Lord, Lord Brown of Eaton-under-Heywood, whose campaigning against IPPs has been a model for us all. I hope the Government will take note of the unanimity in this House on the issues surrounding IPPs.

From these Benches, my noble friend Lady Burt, with her extensive experience of working in the Prison Service and of the injustice of IPPs to individual prisoners, has spoken movingly to her amendments and supported all the amendments in the group, so I will add only very briefly to what she and others have said.

These amendments give this House a chance to send this Bill back to the House of Commons to give it an opportunity to right a wrong that has for far too many years been a scar on our penal system, on our national self-esteem and on our international reputation for fairness and justice. The continuation of the unwarranted detention of IPP prisoners—1,700 never released and 1,300 recalled for breach, often for utterly trivial reasons—has kept them incarcerated for years on end, way beyond their tariff terms, without any moral, intellectual, philosophical or human justification of any kind.

We support the ending of this injustice unreservedly. At Report, we will vote for whatever of the amendments then before the House appear best placed to end this disgrace as quickly as possible.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland

My Lords, I have already spoken once. I speak very briefly to say two things. First, what an impressive debate this has been. I draw attention in particular to the speeches of my noble friends Lord Blunkett, Lord Hunt of Kings Heath and Lord Bradley, the noble Lords, Lord Moylan, Lord Ramsbotham and Lord Hogan-Howe, and the noble Baroness, Lady Burt. I draw attention to them because they are not lawyers; they are people who have had contact in other ways with this system and come to the conclusion that it should end.

Secondly, we on this side of the House support all the amendments. Some are alternative ways of dealing with a particular problem, but we support all the proposals. We are not, in the amendments before the House, going as far as some of the speeches went. We are not suggesting the immediate abolition of the sentence. We are saying: support for those in prison to try to get released; support for those who are released to get proper help; and an easier process of having consideration of the licence being got rid of.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the one with the teeth is Amendment 208F. It says you get rid of these licences and release the person if they have served more than the sentence for the offence. If you have been sentenced to five years in prison, and that is the maximum sentence, once the maximum is reached, unless the detaining authority can prove that you are still a risk, you get released. If you are still below the maximum sentence for the offence for which you were convicted, but you have been in for 10 years, the same principle applies. It is an incredibly sensible way of ensuring the sentence goes for those who have got it, but you keep inside those who represent a severe danger, as long as the detaining authority can establish that they remain a danger.

I very much hope that the Minister will be able to give some words of comfort to the effect that these very moderate proposals will be taken up by the Government. If there are amendments to these proposals, of course, everybody in the House will consider them, but it is time for a change. These modest proposals require consideration for this Bill, because the biggest disappointment would be to be told that it is coming at some later stage.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.

Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.

I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.

I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.

The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.

My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.

We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine

“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”

The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.

I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.

Even without this amendment, the Government expect a large number of applications for licence terminations over the coming years as more offenders become eligible to apply. We do not believe that this will be inhibited by the need for the offender to give permission.

Of course, there is no guarantee that referrals will be successful. The decision lies not with a Minister but with the independent Parole Board. We believe that offenders being managed under licence in the community is a vital part of longer-term rehabilitation and of public protection. The Parole Board will agree to terminate a licence only if an offender’s risk has reduced such that the board is satisfied that the licence and its conditions are no longer necessary for the protection of the public.

With the greatest of respect, I do not agree with the noble and learned Lord, Lord Brown, or the noble Baroness, Lady Burt, that the Parole Board is risk averse. We believe that the Parole Board is applying properly what we consider an appropriate and suitable test. However, we have concerns that, when its various parts are put together, the amendment could cause the Parole Board to consider many applications that have little to no chance of success.

I should also point out that IPP offenders, through their community offender manager, are already eligible to apply to have the supervisory elements of their community licence suspended, again at the decision of the independent Parole Board. They can apply for that after five continuous successful years on licence in the community. If supervision is suspended, they are no longer required to attend supervision sessions with the community offender manager, or to seek approval for where they are going to live or if they want to go abroad, as long as those decisions do not breach any victim-related conditions that remain active. We believe that living under a licence which is suspended is not onerous and allows offenders to lead very normal lives.

My noble friend Lord Moylan commented that offenders may be unaware of how and when their licence might be terminated. It is ultimately the offender’s responsibility to understand the conditions of their sentence and what they can do to end it, even when the active part of the licence has been suspended, but—and this is an important “but”—the probation service does and will continue to make every effort to contact those eligible to apply to have their licence terminated and to seek their permission to submit an application. Unsupervised offenders on licence can still contact the appropriate probation office to discuss any relevant matters, including to make arrangements for licence termination. The probation service will support that application when its assessment is that the licence is no longer needed for the protection of the public. For these reasons, we do not agree that the licence changes are necessary.

Amendment 208F is intended to reverse the burden of proof, in part, for the test applied by the Parole Board when considering whether certain IPP offenders are safe for release. This would apply to offenders who have served a prison sentence 10 years or more beyond the minimum term or longer than the maximum equivalent determinate sentence for the offence.

The current Parole Board release test is constructed so that the board must not give a direction for release—it is a negative test—unless it is satisfied that it is no longer necessary on the grounds of public protection for the prisoner to remain confined. The effect of this amendment for offenders within its scope would be that the burden of proof would be reversed, so that the Parole Board would have to direct release unless it is satisfied by evidence from the detaining authority that further detention is necessary for public protection.

Of course, I understand the reason behind that change in the burden of proof, but we do not believe that it would have a material impact, because the Parole Board would still have to undertake an assessment of risk of harm and reoffending to make a judgment on whether the risk could be managed effectively in the community. We believe that it is one of those cases in which the matter of where the burden of proof lies will not likely affect the underlying decision.

Amendment 208G relates to licence termination. It would automatically terminate the licence of any IPP offender who had been released for two years and was not recalled in that time, unless the Secretary of State applied to the Parole Board to extend the automatic termination point by up to one year. The key point is that the licence termination is automatic. The noble Lord, Lord Blunkett, said that recall provisions had been strengthened and made more draconian, and the noble and learned Lord, Lord Falconer of Thoroton, made a similar point about the ramping up of the recall provisions, but these were not changed after the IPP sentence was introduced or, indeed, after it was abolished; the provisions have remained the same.

I listened very carefully to the case of Ella, as we are calling her, which the noble Baroness, Lady Burt, spoke about. Of course, I obviously do not know the details of that particular case, but I can say that recall provisions for IPP offenders in fact have a higher threshold than determinate sentence recalls, as there has to be a causal link between the original offending and the new behaviour to make it possible to recall the IPP offender. So, the threshold is actually higher for IPP recalls.

Secondly, we have to bear in mind that focusing only on criminality when an IPP offender is out on licence is not, I suggest, always the right way of looking at it. What may appear to some to be minor breaches of licence conditions can be, when viewed in the light of what might be called the index offence—or the original offence—evidence of escalating risk. It is risk that we are focused on here—risk to the public at large, which justifies a recall to protect the public. Therefore, it is not always the case that one is looking only at criminal acts when the IPP offender is on licence; we may also have to look at other behaviour that is related to the index offence and shows an escalation of risk.

The licence is an important tool by which the probation service manages the risk—it is all about risk —which an offender presents to the public. Without the prohibitions and requirements in the licence, the probation service would lack the power to manage and mitigate the offender’s risk. For example, if the offender starts drinking very heavily, and we know that the index offence—or offences—was also linked to very heavy drinking, that would be a sign of increased risk, although there may be no criminality in drinking heavily itself.

Offenders are already able to apply to the Parole Board to have their licence terminated once 10 years since their first release from custody have gone past. The Parole Board is then to determine whether it is safe for their licence to be terminated. We believe that terminating their licence automatically, without any consideration by the Parole Board, would present an unacceptable risk to the public, and for that reason we do not propose to accept that amendment as drafted.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Spokesperson (Scotland), Shadow Attorney General, Shadow Advocate-General for Scotland 5:45, 15 November 2021

None of the amendments would mean that there would not necessarily be a consideration by the Parole Board, including Amendment 208G, which is the two-year automatic end unless the Government made an application to the Parole Board, so I am not quite sure what the basis of rejection of that one is.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

I am not basing it only on what I have called automatic termination. The scheme set out in Amendment 208G would represent a very different approach to management on licence and, for the reasons I have set out, that is not a form of management which we think provides adequate protection to the public. I may come back to that.

Amendment 208H creates a power for the Secretary of State to release an IPP offender who has been recalled to prison, so long as the Secretary of State is satisfied that it is not necessary for public protection for the offender to remain in prison. The position at the moment is that the Parole Board has a responsibility to assess whether offenders are safe to be released into the community, even after an IPP offender is recalled to prison. They can take a decision to rerelease from only 28 days after the offender is recalled. We believe that the Parole Board’s expertise in determining whether offenders serving indeterminate sentences are safe to be released is, as I said, an essential tool of public protection.

If I may, I come back to where I started, with the words of the noble Lord, Lord Pannick. Again, I am grateful for his kind words. I agree that there are certainly problems with the current system; we are looking at it. We believe that our IPP action plan has achieved significant results and we keep it under constant review. The noble and learned Lord, Lord Judge, in what I have learned to be his habit of putting his finger on the point at issue, asked, “Well, what is going to be done?” I hope that I have made it clear that I have listened to the debate very carefully, and that I have no doubt of the mood and the strength of feeling of the Committee. I am also sufficiently acquainted with the ways of this House to anticipate what might or might not be moved on Report as and when we come to it. I can say this afternoon that I will continue to work on this issue—a number of noble Lords know that I have been working on it already—and to listen to the debate, but for the moment, I ask noble Lords who tabled this amendment to withdraw it.

Photo of Lord Blunkett Lord Blunkett Labour

My Lords, there can be no disagreement that this has been a thoughtful and deeply impressive debate—the kind of occasion that does massive good to the reputation of this House. I hope, therefore, that the Minister’s words at the beginning and end of his response will give us some hope for the future. On a lighter note, I have to say that the noble and learned Lord, Lord Woolf, gave me so much advice when I was Home Secretary that I have difficulty remembering which bits of it I took and which I did not.

On this occasion, I have said already that we clearly have got it wrong, and we now have the opportunity to put it right. The House of Commons Justice Committee has not yet started its process; even with the length of debate on the Bill and the number of days that will be added, it will not have reported in time for us to be able to use this vehicle, and I see no other vehicle coming down the road. We have a chance and, given the Minister’s opening and closing remarks, we may have the opportunity to get this right. It would be admirable and most sensible if the Government were able to bring forward their own proposals before Report, through amendments, guidance and any further regulation by subsidiary legislation they are prepared to use, but if we do not get some movement in time for Report, I believe there is unanimity across all parts of this House that we will have to take action. When we do, I hope that we will have the kind of unanimity we have had this evening. I beg leave to withdraw the amendment in my name.

Amendment 208A withdrawn.

Amendments 208B to 208H not moved.

Clauses 116 to 124 agreed.