Lord Blunkett:

Moved by Lord Blunkett

79: After Clause 116, insert the following new Clause—“Independent commission to consider proposals for reform of the IPP sentence(1) Within three months of the passing of this Act, the Secretary of State must establish an independent commission to consider proposals for reform of the imprisonment for public protection (”IPP”) sentence.(2) The remit of the commission must include, but is not limited to, the consideration of proposals that—(a) would allow for existing IPP sentences to be terminated and for their replacement by arrangements appropriate to the circumstances of the individuals concerned; and(b) have regard to the interests of both public protection and meeting but not exceeding the original punitive intention of the sentence imposed.”

My Lords, first, I thank everyone who has made it possible to get to this group of amendments before the business at 7.30 pm. I repeat the thanks, in which I think all others joined on 15 November, to those families and individuals who have been campaigning but also to Members from across the House. I am deeply grateful for the commitment of people in every group of your Lordships’ House and, I have to say, to those who have stayed this evening on the eve of recess. I hope that, by the time that the Minister has responded, it will be possible to see at least a modest way forward. I shall speak very briefly to allow that to happen in good time, so that we can conclude this debate before 7.30 pm.

I monitored the Commons Justice Select Committee’s interview yesterday with the Minister of State, Kit Malthouse, whose responsibilities of course bridge the Home Office and the Ministry of Justice, and I have to say that it was a dispiriting experience. That is why what commitments can be given by the Minister tonight will be so important, because, of all those to whom I have spoken in the department—and there have been several, indeed, multiple changes of Secretary of State and of Ministers—I trust and believe that the Minister understands the issues and is committed to trying to find a continuing way forward, and that therefore his word can be trusted.

I have to say that, when I hear comments, as we heard yesterday afternoon in that Select Committee hearing, about the constant recall of prisoners on licence being for their own good and being—I shall use the word that was used—beneficial, my heart sinks. If people, including officials operating in and overseeing the probation service, do not understand what is actually happening to prisoners at the moment and the dispiriting and hopeless nature of what is overcoming them, then we have a hopeless task in getting this right.

A number of forensic psychiatrists and psychologists in the criminal justice field have written to Members, including the Justice Secretary and the Minister, and will be putting evidence again to the Select Committee in the Commons. Their view has changed over the years, and they now believe that what we are doing is making it less likely that people will be able to be rehabilitated, change their behaviour and therefore get out of this terrible revolving door, which on 15 November we all of us across this House understood to be unacceptable and unsustainable. I heard yesterday a concession that there might well be individuals who will never be released, so we can understand why progress must be made.

We have three amendments in this group. The first, which is in my name—and I am grateful for the support for it—can at least in part be dealt with by a recognition that the Government will take seriously the findings of the Select Committee in the other place.

Amendment 81, which substantially deals with the need for automatic referral at each stage of the prisoner journey, can be dealt with, I believe, if the Government are prepared to bring their own amendment back at Third Reading.

Amendment 80, in the name of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for whom I have the most enormous sympathy and empathy, is something that I know, from monitoring what was said by Kit Malthouse yesterday and what has been said to me in my conversations with the Minister, the Government are not prepared—and will not in the Commons be prepared—to move on at this stage in relation to triggering Section 128 of the 2012 Act.

However, I believe sincerely that, if we can make a little progress in taking even small steps, that will set the ball rolling. What has happened with the campaign—with the pressure and the interest on this issue from people not just in this Chamber tonight but right across this House—has transformed the climate and the landscape for going forward. If we can have new guidance and procedures for the probation service, we can start to take seriously what is happening, instead of, as yesterday, mouthing platitudes about an action plan. There is no plan, and there is little action.

Everyone who has provided evidence has shown that the review and the guidance needed for the probation service is desperate. It is not a trimming of the sail—the term used by one of the officials yesterday—but a lifeboat, because these individuals deserve justice. The Minister in Committee in the House of Commons said that this was unjust. I have accepted that it is totally unjust and has worked out in a totally unacceptable way. The Government acknowledging that and taking steps forward will at least give us momentum and start the ball rolling to put this wrong right. I hope that when we hear from the Minister in a few minutes, we can be assured that, as tentative as the steps may be, we are at last making some progress.

My Lords, in speaking only to Amendment 80, I mention that I also support Amendment 81 in this group. Amendment 80 is the one amendment in this entire Bill that could reduce—if only by a tiny fraction—the prison population, which most of this Bill is, of course, calculated to enlarge. More directly and importantly, it would go some small way towards ending a long-standing and ever-growing injustice, now recognised by many as the greatest single stain on our criminal justice system with regard to the cohort of IPP prisoners.

Amendment 80 applies only to some of the 1,700 or so IPP prisoners still in prison after the abolition of the whole discredited scheme nine years ago by LASPO. The amendment applies just to two categories within the 1,700: those who have now served more than 10 years beyond the tariff sentence—in other words, more than 10 years over the proper punishment for their offending —and those who have now served more than the statutory maximum determinate sentence prescribed by law for their offence. For these people this is manifestly preventive detention—frankly, it is internment by another name.

Your Lordships may like to know that, of the 570 IPP prisoners who have served more than 10 years beyond tariff, 200 had tariffs of less than two years and another 326 had two-to-four-year tariffs, so only very few—44—had more than four years. Your Lordships may also like to know that the UK has more indeterminate sentence prisoners, lifers and those on IPP, than any other of the 47 countries in the Council of Europe including Turkey and Russia.

Unlike life sentence prisoners, who are serving life for the gravity of the crimes they have actually committed, IPP prisoners are there simply for what they might do in future—what, in short, they cannot prove to the satisfaction of the Parole Board that they would not do on release. The uncertainty, hopelessness, utter despair and sheer misery of the prisoners and their families need no emphasis. It is small wonder that there have been many suicides and that the rates of self-harm among these prisoners are more than twice that of life sentence prisoners.

In urging this amendment, I stress the essential modesty of the proposal. It is purely a reversal of the burden of proof. It still leaves the public protected against those who can be shown to be dangerous. If the prison authority responsible for their continued incarceration, with all the various reports from prison staff, medics and so forth, can still show that the prisoner would pose an unacceptable risk on release, then they will not get out. The amendment goes nothing like as far as many would wish and think appropriate.

When the noble and learned Lord, Lord Clarke of Nottingham, who, alas, is not in his place, abolished this scheme in 2012, I understand he wanted to abolish it retrospectively as well as prospectively but was not permitted to do so. Michael Gove, after ceasing to be Lord Chancellor. recognised the intrinsic injustice in the Longford lecture. Matthew Parris recently wrote in The Times how the Government need the guts to reassess these cases.

I end, as I did in Committee, with this question: suppose one of these IPP prisoners with a tariff of a one-year sentence representing his criminality, is more than 10 years beyond that and still unable to discharge the burden of showing the Parole Board that he can be safely released without risk. What should happen? Should he remain incarcerated for another five, 10 or 20 years, or do we as a nation accept lifelong internment for this group? I hope not.

My Lords, I will speak to Amendment 81 in my name which is substantially the same as one I tabled and withdrew in Committee. I am grateful for the support of my noble and learned friend Lord Garnier, the noble Lord, Lord Blunkett, and the noble Baroness, Lady Burt of Solihull. We are dealing with a shame and a scandal. I shall not dwell on the nature of it because that has been well spelled out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I shall come to the substance of the amendment because, of the three tabled on this topic, it is the one that is the most modest and helpful—indeed, it is intended to be most helpful to the Government.

Unlike Amendment 80, referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, it does not concern those in prison serving an IPP, only those living in the community on licence—that is, those who have been released after the Parole Board has resolved that they do not represent a serious risk to public safety. At the moment, 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. The only way 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, which is currently set at 10 years.

The Government have stated that they wish those reviews to be automatic in future, not requiring an application from the prisoner. My noble friend Lord Wolfson of Tredegar said on 21 July in a Written Answer to the noble Lord, Lord Blunkett,

“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.”

I take that as a definitive statement of government policy: automatic referral. But yesterday, when I attended a meeting of the Justice Select Committee in the other place—referred to by the noble Lord, Lord Blunkett—and a question about this was put to Sonia Flynn, chief probation officer, she did not reply using those words. She said something rather different. She said that from September, the probation service had started proactively encouraging those who qualified to make an application. She had no explanation when asked by a member of the committee why, of the 500 persons currently entitled to apply for their licence to be terminated, only 20 had applied.

There is a good reason why the probation service is not carrying out the policy in the terms set out by my noble friend. Close examination of the current legislation makes it clear that the review can be undertaken only on the prisoner’s application. The Government cannot, therefore, make an automatic referral to the Parole Board without the prisoner’s active collaboration.

This amendment addresses that deficiency by amending the Crime (Sentences) Act 1997 to make an automatic referral to the Parole Board at the end of the qualifying period and, if the application is dismissed, annually thereafter. The referral does not depend on the acquiescence or collaboration of the prisoner, so it allows the Government to do what they have said they want to do and I hope it will command their support. What it does not do is prejudge in any way the decision the Parole Board makes on that referral. That remains a matter for the board.

Noble Lords may wonder why an offender entitled to a review at the end of the qualifying period should not have made one on his or her own initiative. What is the need for automaticity? The simple truth, however, is that many IPP prisoners out on licence after that many years simply do not want to re-engage voluntarily with the criminal justice system they believe has treated them so unfairly, even when proactively encouraged—“It’s the Home Office, we have a form for you to fill in”. This is the answer to the question that put to the chief probation officer about why only 20 of the 500 had applied. Automaticity is a good and necessary thing. The Government agree and it would be very strange if they held out against the substance of this amendment given that it gives them the statutory power to carry out their own policy.

There is, however, another part to the amendment. I referred earlier to the qualifying period after which a review of the licence can be applied for or, if this amendment were passed, would take place automatically. That qualifying period is set by law at 10 years. The very last words of the amendment would have the effect of reducing the qualifying period to five years. To those IPP prisoners who received a short minimum term, the 10-year licence period is wholly disproportionate and can hardly be argued to be necessary for public protection because, as I said earlier, under this amendment the decision whether to terminate the licence remains with the Parole Board. Reducing the qualifying period to five years simply reduces the length of time after which an individual is entitled to a review. These people will be out on licence with the approval of the Parole Board and will have shown themselves safe in the community for five years. The number of IPP prisoners recalled after five years out on licence is very small and the latest data shows that no IPP prisoner committed a serious further offence five years or more post release. The risk to public safety in this essentially administrative change is zero.

I very much hope that my noble friend will accept the modest changes effected by this amendment. I hope that noble Lords will bear in mind not only the plight of the offenders affected by this sentence but also that of their families, who have stuck with them in many cases and struggled and fought for them and whose lives, as a family, have been disrupted, damaged and, in some cases, come close to destruction by the injustice done and the practical impossibility of recovering the life of a free citizen. I hope to hear encouragement and undertakings from my noble friend. If not, I give notice now that, reluctantly, I may wish to test the opinion of the House.

It is such a folly, is it not, for legislatures to impose strict, rigid, statutory tramlines on sentencing decisions? That is what this problem stems from and I very much regret that the current Bill finds some more rigid, statutory tramlines to affect the sentencing decision.

What is the problem with this? It is very complex but I will try to sum it up. With the IPP, many of those subject to it or sentenced to it found that their dangerousness as an individual was being predicted on the basis of strict statutory assumptions of general application. That is not the way that we should legislate.

No one wants anybody dangerous to be released. I do not mean to be light-hearted about this, but nobody has ever thought that the noble Lord, Lord Blunkett, was a soft, lily-livered—I do not know what the right epithet would be, but he has never been one of them. He was responsible for this Act. He was the Minister and, if I may say so, I greatly admire his courage in coming to Parliament to say that something went wrong.

Noble Lords:

Hear, hear!

We all know that IPPs are a failure. They were abolished years ago. They are not available. Why on earth do we continue to keep people subjected to them, incarcerated, unless they are indeed dangerous.

May I take a completely trivial example? My daughter is in South Africa. She hit the red line four days after the new virus appeared. If she comes back, she is subjected—or was—to 11 days’ incarceration in a hotel, which is trivial compared to anybody in prison. That has changed and the red lines have gone. Is it really being suggested that those who were in a hotel, in quarantine, should now continue to be in quarantine although people coming in from South Africa will no longer be subjected to it? Of course not; it is completely daft.

I regret to say that I think the current situation is daft. We really must try to help the Government get rid of this absurdity and—can we also remember?—enable justice to be done to a large number of individuals.

I think the last point made by the noble and learned Lord, Lord Judge, needs to be said often and loudly. The noble Lord, Lord Blunkett—I praised him in Committee—was brave enough to admit that this form of sentence was wrong. My noble and learned friend Lord Clarke of Nottingham abolished it when he was Secretary of State for Justice, but we are left with what I may call the detritus of this admitted mistake. What we must do now is clear it up. We have got rid of the sentence. As the noble and learned Lord said, it is no longer available. We are left with, as the noble and learned Lord, Lord Brown, just pointed out in a highly effective speech—and in Committee —hundreds of people remaining in prison long beyond their punishment tariff and others, as my noble friend Lord Moylan pointed out, on licence well beyond any sensible period.

I am a signatory to my noble friend’s Amendment but, as I said in Committee, I could have signed any of the amendments to do with reforming IPPs. I say, as both a Member of this House and as a fellow trustee of the Prison Reform Trust with the noble Lord, Lord Bradley, that we have got to the stage now where nobody who has sense of justice or common sense could defend what we now have. All we are looking for is a way in which the Government can complete the task that my noble and learned friend Lord Clarke began when he was Secretary of State for Justice and which for some reason has not been completed in the eight or so years since the sentence was abolished.

Now is the time. If we are to have a Bill as huge as this, let us make good use of it by adding into it just provisions that do justice and which prevent men and women being incarcerated or on licence still for no very good reason. If I may say so, let us also get rid of this provision that is not doing the victims of their crimes any good either. Victims of criminal activity want justice both for them and for the defendant, but this is not justice for either the defendant or the victim.

My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new Clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.

At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.

I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.

My Lords, I certainly want to hear what the Minister has to say because I will go home very uneasy indeed if I pass up the opportunity for a vote to make it clear that this House rejects the system that has developed into a gross distortion of both our justice system and our sense of values about the circumstances in which someone can be incarcerated and those in which they are entitled to recover their freedom. We cannot tolerate this continuing. There is a hope that the Minister will say things that will enable us to feel that we are making some progress, but some of us will not sleep well tonight if we leave this place without being sure that some progress will be made.

My Lords—

Noble Lords:

Minister.

I will be brief. There is an IPP fact sheet on the Ministry of Justice website that describes IPP sentences as “unclear and inconsistent” and says that they are not working because they

“have been used far more widely than intended, with some … issued to offenders who have committed low level crimes with tariffs as short as two years.”

I do not understand why the Government would continue to leave people to rot in prison when they have scrapped the system. Perhaps the Minister could explain that particular conundrum. I have no legal training but I think I have an awful lot of common sense; to me, this is a clear injustice.

On rotting in prison, I have had a letter from the mother of an IPP prisoner. She said that two of his fellow IPP prisoners committed suicide because they felt that there was nothing left in their lives. Clearly, this is an injustice. Are the Government going to do something?

My Lords, I just want to associate myself with the comments of my noble friend Lord Beith. I will reserve my comments until after the Minister has spoken.

My Lords, I am extremely grateful to the various Members of the House who have spoken. These amendments relate to offenders serving sentences of imprisonment for public protection, known as IPPs. We had a heartfelt and powerful debate on this issue in Committee; the mood during today’s debate has been equally apparent. I should say that, throughout this time, I have personally received a lot of emails from families affected by IPP sentences. I put on record that I have read all of them, even if I cannot reply to them all individually.

Let me go through the amendments and set out the Government’s position clearly. First, I make it absolutely clear that the Government recognise that more work needs to be done in relation to this group of prisoners. On that basis, the Government intend to bring forward an Amendment at Third Reading. I will give details of that amendment in a moment; let me first set out the work done so far.

We have put together 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 to safe release via this plan. Liaising with front-line staff and consulting stakeholders, officials regularly review and revise the plan to ensure that it addresses current operational challenges. As I noted in Committee, the Justice Select Committee in the other place has launched an inquiry into IPP sentences, as already referred to. Its stated aim is to examine

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

The Select Committee is scrutinising what the Government are doing and will provide recommendations, which the Government look forward to hearing. I therefore underline that we are already doing effective work in this area.

Turning to the amendments put forward by noble Lords, Amendment 79 would require an independent commission to be created to consider proposals for terminating existing IPP sentences and replacing them with other arrangements as would be appropriate for the individuals concerned. The commission might also consider other matters. The Government’s long-held view is that legislating to resentence IPP offenders would cause an unacceptable risk to public safety. Any resentencing of IPP offenders would risk the immediate release of many prisoners who have committed serious sexual or violent offences without a risk assessment and, in many cases, with no licence period. It is therefore vital to public protection that they are released only when the independent Parole Board determines that they may be safely managed in the community. Our aim is therefore to provide all those who continue to serve IPP sentences with every opportunity to show that they can safely be released by the Parole Board. The IPP action plan, which I mentioned a moment ago, is working. As of 30 September 2021, there are 1,661 IPP prisoners who have never been released. That marks significant progress compared with the more than 6,000 people in custody serving the IPP sentence at its peak, so we do not think that establishing a commission is necessary, given that officials already consult widely on the measures needed to reduce the IPP prison population safely.

Amendment 80 is intended to reverse what some consider to be the burden of proof for the test applied by the Parole Board when considering whether certain IPP offenders are safe for release. This would apply to IPP offenders who served a prison sentence of 10 years or more beyond the minimum term as directed by the court, or longer than the maximum equivalent determinate sentence, for their offence or offences. The current Parole Board release test is constructed so that the board must not give a direction for release unless it is satisfied that it is no longer necessary on the grounds of public protection for the prisoner to remain confined. For the offenders in scope of this amendment, the burden of proof test would be reversed. We discussed this matter in Committee when I reiterated our view that the amendment, in so far as it reverses the burden of proof, which some claim is inherent in the current test, would not have a material impact on release decisions for IPP offenders. The intention of this amendment is that the Parole Board assessment should be altered to ensure that more IPP offenders are released. We just do not agree that it would have the intended effect or is in any way necessary because the Parole Board would still have to undertake an assessment of the risk of harm and reoffending to make a judgment on whether the risks could be managed effectively in the community. It is not a matter where a burden of proof, however framed, would likely affect the underlying decision.

I now turn to Amendment 81. I place on record my sincere thanks to the tablers of the amendment, especially the noble Lord, Lord Blunkett, for the significant amount of time that he and others have dedicated to discussing this issue with me. I know that he and, indeed, everyone else in the House will listen carefully to what I am about to say. I intend to be very clear.

At Third Reading, we will bring forward a government amendment putting our policy of automatic referral of licensees on a statutory footing so that when the time comes that an application for release or termination of licence can be made, it is made. At this stage, we cannot accept a reduction in the qualifying period from 10 years to five years, but we will return to this issue once we have received the report and recommendations from the Justice Select Committee in the other place, which, as I said, is currently in the process of taking extensive evidence.

As I said, we do not think that establishing a commission would be an effective way forward. However, we are prepared to urgently consider automatic referral, as I said, and by the Secretary of State, as this would not detrimentally impact other conditions and could provide clarity for the individual serving out the licence conditions. To provide reassurance to your Lordships’ House and to those campaigning for change—particularly the family of IPP prisoners—the Government are willing to look at the guidance provided to the probation service and the procedures to be followed in supervising those on licence to minimise the risk of breach of licence and promote the rehabilitation of those who have served their sentence and are now on licence.

Although the Government are clear that it is the role of the Parole Board to assess risk when agreeing release on licence, we are mindful, as was indicated in Committee in the other place, of the potential injustice of the revolving door, and therefore take seriously the representations made by noble Lords in Committee and tonight. I reiterate that I am extremely grateful to those who have taken the time and effort to discuss these matters with me on a number of occasions over the last few weeks.

On this basis, I hope that the tablers of the amendments in this group will agree that the Government are acting in good faith, and will therefore not press their amendments this evening.

Before my noble friend sits down, I heard what he said, but if the Justice Select Committee in the other place was to recommend a reduction in the qualifying period from 10 years to five years, would he at least give his personal undertaking to do his very best to ensure that the Government found an opportunity to legislate for that at the earliest possible time?

I am not quite sure of the meaning of a personal undertaking from me to ensure that the Government will find an opportunity. I hope the House will appreciate that I have personally put a lot of time and effort into this matter. When I see the Justice Select Committee’s report, that time and effort will not diminish.

My Lords, I am not sure this is protocol, but it might help progress if I indicate to the House that, in discussions with the Minister, we had come to an understanding that we were taking steps forward in a way that would start to unlock this problem. In what he has just read out, the Minister has fulfilled what he agreed with me, and I trust him. On that basis, I recommend to colleagues that we accept the offer of the Third Reading Amendment and the commitments that have been made on both procedure and recall, and we move forward on that basis this evening.

My Lords, I cannot pretend to be wholly content, let alone happy, with what the Minister has been allowed to say today. It falls dramatically short of providing any sort of an answer to the final question I asked earlier: are we to keep these post-tariff detainees in effect endlessly and for life? It is surely no answer to my point to say that reversing the burden of proof is unlikely to make any difference. That is even less a reason to object to this Amendment.

I repeat that I am very far from happy but, as the noble Lord, Lord Blunkett, said, we have at least got some assurances, for the first time, that Ministers will look again at the plight of these IPPs and make some improvements at least to the recall regime—hopefully the first step in a re-evaluation of the entire remaining IPP problem. The other consideration that now weighs on me is the point that has been made that the Justice Select Committee in the other place is now deep into its full-scale IPP inquiry and its eventual report must surely inform the Government’s approach. In the meantime, alas, it provides something of an excuse for the Government to do little of great note.

It is clear that there is huge support for Amendment 80 around the House. What is ultimately needed is political will. For my part, let us hope that the Select Committee will call for proper reform and for the political will to deal with it, and that that is now shown. Meanwhile, I confess that I am deeply disappointed, as will be the IPP prisoners and their families. As the noble Lord, Lord Blunkett, points out, I have no alternative but to not press my Amendment 80.

On the basis of the Minister’s statement, and not wanting a pyrrhic victory, which would end in defeat and even greater hopelessness for those we seek to help, I beg leave to withdraw Amendment 79.

Amendment 79 withdrawn.

Amendments 80 and 81 not moved.

Consideration on Report adjourned until not before 8.10 pm.