Amendment 149

Victims and Prisoners Bill - Committee (7th Day) – in the House of Lords at 4:50 pm on 12 March 2024.

Alert me about debates like this

Lord Thomas of Cwmgiedd:

Moved by Lord Thomas of Cwmgiedd

149: Clause 48, page 51, line 10, at end insert—“(ba) after subsection (3), insert—“(3A) Where—(a) the prisoner has been released on licence under this Chapter,(b) the qualifying period has expired, and(c) if his case has been considered for termination previously by the Parole Board and a period of at least twelve months has expired since the disposal of that application,the prisoner may make an application to the Parole Board under this subsection.””Member’s explanatory statementThis amendment, along with two others in my name to Clause 48, would allow a prisoner whose licence has not been terminated by the Parole Board three years after their first release to make an application annually to the Parole Board for termination.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee), Chair, Arbitration Bill [HL] Special Public Bill Committee, Chair, Arbitration Bill [HL] Special Public Bill Committee

My Lords, the subject of IPPs is so well known to you all, and indeed to many outside this House, that it is unnecessary to speak at any length about it, save for one remark and one set of common grounds.

When the Minister said that this Bill was about victims, he was in every sense right. In some senses, those who received the sentence of IPP are in fact victims, as I will endeavour to explain by reference to what I think are four areas of common ground, which I think ought to guide what I wish to say.

The first area of common ground is that the 2003 Act which implemented these was a mistake and should never have been enacted. There is now no dispute about that. I pay tribute to the noble Lord, Lord Blunkett, for the candour, statesmanship and exemplary conduct he has shown—which so few do—in admitting error. He is to be warmly commended for that, and my only regret is that he is not here in person for him to hear what we all feel.

The second point of common ground is that the operation and the effect of the IPP system has been a stain on the administration of justice in England and Wales. Again, I do not think that is disputed.

Thirdly, the outcome of imposing sentences of IPP has been problematic in very many ways, and a particular problem has been the effect on the mental health of those who received this form of sentence, particularly those in the initial period from 2005 to 2008.

The fourth area of common ground is the old phrase, “Something must be done!” The real question is: what should be done? These problems have to be addressed; we cannot leave them unaddressed.

In the groups of amendments to be considered this afternoon, the real issue relates to that fourth point of common ground: what is to be done? One should begin by welcoming the leadership shown by the Lord Chancellor—this Lord Chancellor, I underline—in the Bill. He has accepted that there are problems and that they need to be addressed. We have to recognise that he is in some senses constrained by circumstances and by events which may happen later in the year. However, I very much hope that in the course of this debate we can achieve more under his leadership, which has been outstanding in this respect, and see what we can do to try either to solve the problems now or at least to make certain that the basis is there for their solution in the future.

Having said I would say very little by way of introduction, I may have spoken for too long; I now turn to the amendments in the first group. These are amendments to Clause 48 and there are four sets of them. I am extremely grateful to the noble Lords, Lord Moylan and Lord Blunkett, and the noble Baroness, Lady Burt of Solihull, for their support by co-signing these amendments, which all relate to the provisions for release on licence.

I am not sure how well appreciated it is that the licence period after release from an IPP is one of the most draconian aspects of the sentence. After release, the offender is on licence and subject to licence conditions—and, most importantly, subject to recall if they breach them—for an indefinite period presently, unless the Parole Board decides to release or reduce the licence period. At present, it cannot do so until 10 years have elapsed. It is that 10-year period which this clause seeks to address. At the moment, all cases are referred to the Parole Board for consideration—but 10 years is a very long time.

One of the things that is clear on the evidence—and it is always important to proceed on the evidence—is that the indeterminate nature of IPP sentences has created many very serious mental health issues and these are exacerbated by the licence period. It is very difficult for someone who has been in custody for such an indeterminate period, not knowing when they are going to released, to maintain his or her mental stability—and then being subject to 10 years on licence is almost impossible.

So we must warmly welcome the basis of this recall in reducing that period from 10 years to three years, because then the Parole Board can look at the licence period and decide whether it should be terminated then and there. If it is not terminated and if the person is successful and remains on licence, out of custody, for two years, there is a sunset or automatic termination. So, before I turn to the amendments, I think it is right to say that this is a huge achievement and, on almost everyone’s behalf, I thank the Lord Chancellor and the Secretary of State for doing this.

My amendments make changes to this new regime which are minor but important. I hope they are of a kind about which there will be little dispute—because, if there are disputes about these, I dread to think where we shall get to when we go down the list. Four areas are covered by these amendments. The first of these sets of amendments are Amendments 149, 150 and 151, which try to set out a more flexible and just way of terminating the licence period if it is not terminated at the three-year point.

I do not want to go into the technicalities of this too much, because this is typically awful sentencing legislation—most sentencing legislation is awful, as is shown by the fact that the Sentencing Code is about this thick—and I do not think a debate on the language is a good way for us to spend our time. But, in essence, this provides that, if the Parole Board does not at the three-year period terminate the licence, we have to address whether it is right that the person has to wait to have their licence terminated by spending two years without the risk of having their licence revoked and returning to prison.

The essence of this amendment is accepting the mental health problems that this form of imprisonment has caused and for which ultimately the state is responsible, as a result of the enactment of this legislation. This amendment seeks to restore a right of annual review. This would give the Parole Board the opportunity each year to look at the position of the individual and see whether, in all the circumstances, we can terminate.

Amendments 150 and 151, which I will deal with separately as they are slightly different, go to putting right a possible injustice in how the legislation is drafted. As everyone appreciates, the offender can be recalled to prison. Sometimes, there is a mistake in the recall. The Lord Chancellor or the Secretary of State can set that aside and revoke the recall. He does so if there has been a mistake. However, the problem with how the legislation is drafted—this is a highly technical problem—is that if he recalls the person but decides subsequently that it was a mistake, the two-year period is interrupted. That is unjust. Why should you be prejudiced by a mistake? The very simple Amendment 150 deals with human error, so that the offender is not prejudiced.

Amendment 151 deals with a very analogous problem—what happens if a person is recalled by the Parole Board, in the exercise of its judgment in respect of what is known as the Calder jurisdiction? I need not go into this matter in any detail because the point is a simple one. If the Parole Board decides that it was inappropriate to recall him but that he is fit for release, again, the effect of that in the Bill as currently drafted is that it breaks the two-year period and therefore the person has to start all over again. It is a bit like going round the Monopoly board and being sent back to the start again. This is something that we should not have.

Amendment 152 is very simple. The Bill contains a power to change the period of three years. There are two solutions to this. The noble Earl, Lord Attlee, will address the first, which is whether we should remove the power altogether. The second—my preferred solution —is to alter “change” to “reduce”. “Change” enables you to increase, and I am sure that no one in Parliament wants to see an increase in the period. So I think it would be better to have a power but to make sure that it can be exercised in only one way. Having said that, I very much hope that this will not be controversial and that the Government can agree to this or to something very similar. I beg to move.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 5:00, 12 March 2024

My Lords, I have the privilege of rising on behalf of my noble friend Lord Blunkett, who is incredibly disappointed not to be here. He has a long-standing and unbreakable prior commitment. I know that he would want me to thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for the kindness that he displayed and for his crystal-clear description of these amendments and of the injustices and technicalities that they address, which any lay person could understand. I am very grateful, as I know my noble friend would be. I share in the tribute to my noble friend. The fact that the former Home Secretary has asked the former director of Liberty to speak on his behalf is perhaps testament to the character of my noble friend.

My noble friend supports all the amendments in this group, most of which belong, at least in initiation, to the noble and learned Lord. He also signed Amendment 156 in the name of the noble Earl, Lord Attlee, because of this concern that no period should be increased by the Secretary of State.

For my own part, speaking for myself at this moment and not for my noble friend, of the two approaches—taking the power to alter entirely or leaving it as one only to reduce—I rather agree with the noble and learned Lord, Lord Thomas of Cwmgiedd. He has done so well in the explanation that I need say little more, other than that I also remember today our friend, his noble and learned friend Lord Brown of Eaton-under-Heywood, for whom righting this wrong, this stain on our justice system, was also incredibly important. Too many people in public life are happy to forget and ignore the mistakes of last week, let alone of two decades ago, but, if this is the House of Elders in our parliamentary system, such as it is, this is exactly the Committee to be embracing the amendments put so brilliantly just now by the noble and learned Lord.

Photo of Baroness Burt of Solihull Baroness Burt of Solihull Liberal Democrat

My Lords, I thank the noble and learned Lord, Lord Thomas, for his comments and endorse everything that he said, particularly about the noble Lord, Lord Blunkett, who we all wish was here today. I will address one or two of the pragmatic issues. The amendments in this group all relate to IPP licences, and I support them all. They are intended to affect the applications of licences to be fairer and speedier, so that we can release or re-release IPPs as fast and as safely as possible into the community.

Clause 48 currently removes the element of annual review in favour of one-off review every three years. However, if the Parole Board decides not to terminate the licence of this point, Amendments 149 and 150 restore the right—removed by the Police, Crime, Sentencing and Courts Act—to an annual review by the Parole Board. The Prison Reform Trust comments that having a sunset clause of a further two years might just constitute a high bar for some prisoners, and that the Parole Board should be able to terminate the licence after one year, otherwise licences could drag on for years, as before.

The circumstances described in Amendment 152 are probably quite rare, but it is worth ensuring that a person would not have to suffer if they had been recalled but the Secretary of State had revoked the recall, presumably because there had been an error of some kind and they should not have been recalled. The prisoner should not be penalised because of an error not of their making.

Amendment 153 continues in a similar vein, but this time gives the Parole Board the ability to maintain the sunset clause. However, in this case, it is slightly more complicated. Firstly, the Secretary of State can recall if they conclude on reasonable grounds that the prisoner has deliberately revoked the terms of their licence and the safety of the public would be at risk. The Parole Board can overturn the Secretary of State’s decision to recall a prisoner if on subsequent review, and if it is privy to more information than the Secretary of State, it subsequently concludes that the prisoner is not putting the public at risk.

Amendment 157 ensures that the Government use their wide-ranging powers to change the qualifying period using only secondary legislation and that they can revise it only downwards. If they want to revise it upwards, it will have to be done with primary legislation. This is within the spirit of the Bill today. This amendment ensures that a future Government would not be tempted to use this power to make the situation worse for IPP prisoners, not better.

All in all, this suite of amendments is sensible and, as the noble and learned Lord, Lord Thomas, said, pragmatic. It is offered in a spirit of helpfulness. I sincerely hope that the Minister will see this and maybe feel that it is appropriate to introduce government amendments to this effect.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I rise possibly as an elder, owing to my advanced age; but perhaps not. I would like to support the noble and learned Lord, Lord Thomas of Cwmgiedd. As he said, there is almost nothing left to say about these prisoners. It is an injustice. I hope that the Government are considering accepting some of these amendments. We cannot say that we have a justice system if we have an innate injustice like this.

I support the tributes to the noble Lord, Lord Blunkett, but also to the noble Lord, Lord Moylan, with whom I have almost nothing in common; we have a very tetchy relationship but, on this, I think he is being superlative in working for the rights of IPP prisoners.

As Greens, we believe that prison is overused as a tool of justice. Far too many people are imprisoned when there are much more effective ways of rehabilitation or stopping reoffending. I can understand the anger of people who say that we should lock up serial rapists and murderers and throw away the key. I do understand that anger; but, in this instance, we have, for example, a 17 year-old who steals a bike, or people who grab other people’s mobile phones. This is clearly an injustice; I find it difficult to believe that anybody listening to this would not agree.

The lawyer and campaigner Peter Stefanovic put out an online video about this. It has had 14 million views. A petition to force the Government to debate this again got easily 10,000 signatures. There is massive public support for sorting out this issue. I know that the Government care very much about the will of the British public. The word that came through for me in some of the responses to the video was “cruel”. The sentencing and continued imprisonment of IPP prisoners has just been cruel. Please, let us see some progress on this Bill, then we can all take the Ministers out for a cup of tea.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, I am grateful to the noble and learned Lord, Lord Thomas, for moving his amendment. I have tabled Amendment 156; it may be convenient to speak to it now. Before doing so, I have some general points to make about the whole issue of IPP, which I will not repeat in detail later.

I am grateful for all the work that my noble friend Lord Moylan has done along with the Prison Reform Trust and UNGRIPP. In 2017, as a result of a debate initiated by the late noble and learned Lord, Lord Simon Brown of Eaton-under-Heywood—I am grateful for the comments of the noble Baroness, Lady Chakrabarti —I decided to take a very close look at our penal system. I soon found that I needed to widen my interest to the whole of the criminal justice system because there is so much is wrong with it. One obvious example is joint enterprise murder, but that is for another day.

Let no one think that I am some sort of soft, bleeding heart, out-of-touch do-gooder. I am not. I believe in firm discipline, with all that that implies. But—I repeat, but—no more disciplinary sanctions should be applied, including incarceration, than are needed to have the desired, legitimate effects of protecting the public by incapacitation, and providing retribution, deterrence and rehabilitation. The current IPP regime clearly fails this test on all counts. I will not rehearse the heart-rending histories that we have all heard about. They are not in dispute.

I also accept that some prisoners on an IPP sentence may not be releasable any time soon even under a resentencing scheme. However, keeping prisoners incarcerated unnecessarily costs £44,000 per annum per prisoner and wastes resources. We know we have a terrible prison system because the Chief Inspector of Prisons tell us that is so. In his 2023 report, he said that inspectors have run out of superlatives to describe how poor the purposeful activity component of prison life is, or words to that effect. No wonder IPP prisoners find it so hard to demonstrate any progress with rehabilitation.

We have undertaken almost no noticeable reform of our prison system since the proposals made by the noble and learned Lord, Lord Woolf, in the early 1990s. My noble friend the Minister may point to some incremental improvements, but they would not be something that even a well-informed member of the public would be aware of.

I support all the IPP amendments that have been tabled to the Bill. We really do have to do something to solve this problem, no matter how difficult that might be. As the noble and learned Lord said, something must be done.

I do understand the difficulty that the Opposition Front Bench finds itself in. However, I think that we have to be clear that the determining factor is a policy set by the shadow Secretary of State in another place. I would happily vote for any of the proposed amendments if supported by the Opposition Front Bench, but I can understand the fear arising from the possibility that a released IPP offender might commit a further offence and it might be a serious one. But the fact is that we are often releasing offenders knowing that there is a high probability of them reoffending. That is why I have made my proposals for dealing with young prolific minor offenders, which I keep bending your Lordships’ ears about in private.

I turn to my Amendment 156. Clause 48 deals with the termination of licences for release, as we have heard. My amendment totally removes the power of the Secretary of State to alter the qualifying period by statutory instrument. Of course, I would be content with the proposal to allow the Secretary of State only to reduce, as suggested by the noble and learned Lord, Lord Thomas, in his Amendment 157. It is not clear to me why this provision in Clause 48 is necessary or desirable. Suitable criminal justice Bills come to your Lordships’ House with monotonous regularity and any one could be used to effect a change if desired. Can my noble friend the Minister suggest in what circumstances it might be necessary to alter the qualifying period because, presumably, this IPP problem is going to be solved quite quickly—or is it not really?

It is also quite a palaver to secure an affirmative order; it is not that simple and there are a lot of processes to be gone through. Also, it would require a one-hour debate in your Lordships’ House. Assuming any change was desirable, it might be simpler to use a suitable Bill to effect any change needed.

Photo of Lord Woodley Lord Woodley Labour 5:15, 12 March 2024

My Lords, I support this group of amendments. I support of all the IPP amendments debated now and later this evening. First, I express my sincere regret for being unable to speak at Second Reading, as this is a subject, as colleagues know, that is very dear to me and of great interest to me and I have raised several times in your Lordships’ House.

I had the humbling experience of meeting and listening to former IPP prisoners, who had served from five to ten years more than their minimum sentence, and family members of prisoners who have served more than 15 years over tariff. I have to tell the Committee that it was a heart-breaking occasion, knowing that there was no end to their injustice in sight, no hope for the thousands of prisoners and family members who are treated so inhumanely, not enough courses to help them to apply for a review and not enough opportunities within the justice system to even give them a review.

As has been mentioned, IPPs were abolished over a decade ago, so how on earth can it be that so many people—almost 3,000 of them—are still living through this never-ending nightmare? I agree with the Justice Select Committee and the UN special rapporteur on torture that resentencing represents the only way forward for resolving the IPP scandal and for justice at long last to be done.

Importantly, as the noble and learned Lord, Lord Thomas, mentioned, we must not forget the psychological effects of IPPs on prisoners and families alike, as the Justice Committee’s report so vividly highlighted and has been further demonstrated by the high number of suicides that we have tragically seen. Likewise, the UN special rapporteur, Dr Alice Jill Edwards, describes IPPs as “psychological torture” and says it is

“tragic that so many mental health challenges appear to have been caused—or at least aggravated—by the uncertainty of indeterminate sentences”.

I agree with that. This is a miscarriage of justice on an industrial scale. It may not presently have the profile of the Post Office scandal, but nevertheless it is a cruel injustice that has gone on for far too long.

I understand—as, again, has just been mentioned—that both Front Benches have previously been resistant to resentencing on the grounds of public safety. Of course, in an election year no one wants to look soft on crime. However, to quote Dr Edwards:

“It is the responsibility of the UK government to protect public safety, but citing this as the reason not to review IPP sentences is misleading. The UK, like any society with a strong rule of law, has measures to protect the community after prisoners are released. Locking people up and ‘throwing away the keys’ is not a legal or moral solution” to this terrible problem. I agree, but if either Front Bench is still in need of more political cover to do the right thing, I suggest that Amendment 167C in the name of the noble Earl, Lord Attlee, which we will come to soon, fits the bill. That amendment would delay resentencing until the chief inspector was satisfied that the Probation Service could adequately protect the public following any resentencing exercise. The long- overdue release and justice for IPP prisoners should not be blocked over the excuse that the Probation Service cannot cope, but Amendment 167C might be the compromise needed to unlock that puzzle—a pathway out of this political impasse. I sincerely hope it is.

I urge the Committee to summon the post-war spirit of 1945 and back Amendment 167C from the noble Earl, Lord Attlee, and that of the noble Baroness, Lady Fox. I know that IPP prisoners and their families are watching us here, hoping but also fearing what might be coming round the corner. Our Parliament must strike up the courage to act and correct the injustices that we can all see if we just open our eyes.

Photo of Lord Hastings of Scarisbrick Lord Hastings of Scarisbrick Crossbench

My Lords, I too support this array of amendments on IPP, both the current amendments and the ones that will follow. As the Committee will know, I am a regular visitor—twice a month—to prisons across the UK, and I will visit another one tomorrow morning. On a regular basis—two a month—I meet many incarcerated men and sometimes women, and many who have left prison over the last 10 years, and I have found relentless IPP tragedies around every corner.

I shall refer to one story from a meeting in December, when a man came up to me and said that he had been released from an IPP sentence 14 years ago but was recalled back to prison in September after he forgot to inform his then probation officer that he had gone on holiday with his wife in August for two weeks to Spain. This is just sheer stupidity, let alone the fact that this system is organising to persecute people compared with recognising their renewal. In his case, and not just because I have now met him twice, he does not deserve the taxpayer to spend nearly £50,000 for an extended period to make sure that he is further detained and punished.

I hope the Minister will gather up all his strength and either accept this array of amendments in one gulp or go back to the Lord Chancellor and determine to bring back an effective set of government amendments that will allow us to end this appalling stain of injustice and unfairness. Another man I met eight years ago from a prison in Kent had been recalled three times. From an initial sentence of seven years, he had done over 24. The persecution of this man’s mental abilities was blatantly obvious; he was no risk to anyone. I can tell noble Lords that since we campaigned for his release, and he has been released, he is an honourable citizen paying his taxes. That is how we should treat many of these men—they are largely men—to see that they are given the opportunity to prove their new life.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

My Lords, I wonder whether I could detain the Committee for one minute on Amendments 156 and 157. The background to this is my time as chairman of the Secondary Legislation Scrutiny Committee, when, with my noble friend Lord Blencathra, we drew attention to the creeping growth in the power of the Executive at the expense of the legislature in our reports Government by Diktat and Democracy Denied?. Therefore, when amendments present changes to be effected or not effected by secondary legislation, my ears prick up.

First, we have to recognise that there has to be secondary legislation. The SLSC looks at between 600 and 800 regulations per year. To think that those can be put through by primary legislation is fanciful. The Government’s system would be completely gummed up, so something has to be done.

Secondly, we all know that the system for scrutinising secondary legislation is weak, to say the least. There is no chance to amend, even if the House were to agree that one particular provision in a regulation was inadequate or wrong; it is all or nothing. There is no room for ping- pong or other things we see in primary legislation. All those things are important. This House has decided to stand in the way of secondary legislation only six times since 1968. The last time, in 2015, led to a full-scale constitutional crisis, the Strathclyde review, et cetera.

With great respect to my noble friend Lord Attlee, it seems that Amendment 156 would lock us into the structure we currently have. He says that a criminal justice Bill will be along in no time at all; maybe, but we would be locked into the structure we have because the Secretary of State has no power at all. By contrast, Amendment 157, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, would give the Secretary of State some powers, but only to loosen, not to tighten. It seems to me that, in so far as we are seeking a balance between the Executive and the legislature, between moving too quickly and not moving at all, Amendment 157 is to be preferred, and I hope the Committee would not accept Amendment 156.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, this has been an interesting and relatively short debate. We have four groups of amendments covering IPP sentences, and this first group is perhaps the easiest and most benign to agree with. I say to the noble Earl, Lord Attlee, that we in the Opposition have no problem with this group. I acknowledge the interesting point that the noble Lord, Lord Hodgson, just made regarding the differences between Amendments 156 and 157. Nevertheless, we have no problem agreeing with the generality of amendments in this group. I thank the noble and learned Lord, Lord Thomas, for his crystal-clear description, quoting my noble friend Lady Chakrabarti, when he introduced the amendments.

We agree with the general thrust of these amendments and, if it comes to it at a later stage, will support any amendments that may be pushed further. I would like to do the Minister’s job and say what the problems might be. I acknowledge that, with a reducing cohort of IPP prisoners in prison, you are dealing with very difficult and potentially dangerous people. As this number reduces, the problem gets greater. I think that is a fair point to make. It is a point the Minister usually makes, but I want to make it from this side of the Chamber.

We will come to more ambitious proposals in subsequent groups, but here we are just dealing with various amendments to licence conditions and fairly imaginative ways of reducing them overall. We support them in the generality.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice 5:30, 12 March 2024

My Lords, I thank all noble Lords who have spoken. I will first briefly recap some basic points that apply equally to the second and fourth groups of amendments that we will come to.

First, this Government recognise the highly regrettable history of this particular sentence. The Lord Chancellor himself has described IPP sentences as

“a stain on our justice system”.—[Official Report, Commons, 15/5/23; col. 592.]

As the noble and learned Lord, Lord Thomas of Cwmgiedd, rightly said, the question is what should be done. I will briefly summarise, to encapsulate our debate, what the Government think should be done.

The Government are making some very determined efforts to mitigate the situation of IPP offenders who are still subject to a sentence that was abolished in 2012. To bring noble Lords up to date, there were originally approximately 8,100 people subject to these sentences. Of those people, as of last December 1,227 had never been released, 1,625 had been released and later recalled, and there were still about 3,000 on licence in the community. Currently, as the noble and learned Lord, Lord Thomas, pointed out, an offender cannot apply to the Parole Board to have their licence terminated until 10 years after first release.

Taking the released and then recalled population first, this is a challenge because that population is slowly rising. The major statutory change in Clause 48 will reduce the qualifying period before the offender becomes eligible for licence termination from 10 years to three years from first release, with a presumption of termination after three years and an automatic termination two years thereafter—provided that the offender can pass two years in the community without further recall. That is, as I think the noble and learned Lord, Lord Thomas, said, a huge change and a major achievement for the Government to be proposing. It should substantially mitigate the problem of prisoners being released and then recalled, which we will come to in more detail as this debate continues.

Regarding the second cohort—perhaps the first, depending on your point of view—of those who have never been released, most of these people have come up before the Parole Board, which is responsible for deciding on their release. In many cases, this has happened many times and the Parole Board has decided that it is not safe to release them as the risk to the public is too great. What is the Government’s approach to that problem? Spurred on by the 2022 report of the JSC, to which I pay tribute, the Government are developing a robust, coherent and detailed action plan in consultation with relevant stakeholders, including the families, with the aim that each prisoner has a tailored sentence plan, appropriate support and clear objectives to work towards eventual release.

This last cohort is difficult, as the noble Lord, Lord Ponsonby, has just pointed out because, aside from having committed very serious offences, many suffer from trauma, mental health issues, substance issues and so on. However, the Government are determined to see this cohort further reduced and to get rid of the idea that there is no hope. In the Government’s view, no one has given up on the IPP prisoners who have never been released. They have to be worked on. That is a hard task, but one that the Government—any Government—should take on.

For example, the number of those released has been reducing over the last two years at roughly 200 per year. There are now 200 of these prisoners in open conditions who are being prepared for further release. It is not as if nothing is going on or as if things are just vegetating and no one cares. The Government are very focused on doing something about this most difficult cohort. That is the overall framework, which I hope your Lordships will view, despite the difficulties of the past, as something of a new beginning for the future.

With that background, I turn to Amendments 149 to 151 in the name of the noble and learned Lord, Lord Thomas. The effect of these would be that, if the Parole Board refused to terminate the licence at the new three-year point, the offender would have the right to apply annually to the Parole Board for a licence determination. As the Government understand it, the offender would be in the community rather than waiting out the two-year period, which results in the automatic termination of the licence. The offender would be able to apply to the Parole Board for termination after one year.

The Government recognise that released offenders in many cases need better support and have accepted all the recommendations to that effect in the recent report of the Chief Inspector of Probation on the recalls of IPP prisoners. However, the Government are not at present persuaded of the need for Amendments 149 to 151, on the following basis. If the offender has applied and the Parole Board, after three years, does not terminate the licence at that point, it does not seem to the Government unreasonable to expect the offender to spend two years in the community with the incentive of the certainty of licence termination at the end of that period. This amendment would enable the offender to make an interim application at the end of year four. That would impose further resource costs on the Probation Service and Parole Board because reports have to be prepared, hearings have to be convened and so forth. It would necessarily take the Parole Board several months to process that application.

We have come back several times in this debate to the pressures on the Parole Board and the time these applications take. It appears to the Government that, even if you could apply after year four rather than waiting until the end of year five, there is probably only a marginal gain for the offender. The Government are not at the moment persuaded on these amendments, although the Government continue to be in listening mode on this part of the Bill, as on every other part of the Bill.

Amendments 152 and 153, also moved by the noble and learned Lord, Lord Thomas, address what one could call in shorthand “questionable recalls”. I think there are two sorts of recall that we should be thinking about. The amendments suggest the possibility of the Parole Board disregarding a recall for the purpose of calculating the two-year period. Perhaps I may first clarify what is considered to be the existing position. If a recall is based on a fundamental mistake of fact—for example, the probation officer thinks that the offender has missed an appointment but the offender is in hospital because of a road accident the previous day—the Lord Chancellor considers that he already has the power in such a clear case to treat the recall as a nullity, as never having happened. That is a relatively clear case and I respectfully suggest that Amendment 152 is unnecessary.

The situation envisaged by Amendment 153 is effectively a challenge to the judgment call made by the probation officer about the recall. Technically it is a decision by the Secretary of State, but in practice of course it depends on the report by the probation officer. Amendment 153 would require the validity of that recall—the “appropriateness” of that recall, to use the word in the amendment—to be considered by the Parole Board and treated as a nullity if the board then considers that the recall decision was not appropriate. Although the Government understand the thinking behind the amendment, His Majesty’s Inspectorate of Probation found, in both 2020 and much more recently in 2023, that in practice HMPPS recall decisions are very largely appropriate.

At present, the Parole Board does not have any power to adjudicate on the appropriateness of the recall; its task is to decide on the issue of public protection and whether the offender is safe to release. For that purpose, the Parole Board will typically have much wider and more detailed information than was available to the individual probation officer faced with the recall decision. Amendment 153 would, however, turn the Parole Board process into an appeal from the recall decision and require the Parole Board, in effect, to second-guess what it would have done had it been the probation officer with the information then available to the probation officer.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

I am grateful to the noble and learned Lord for giving way. I should like to better understand this part of the argument. When the noble and learned Lord said he is satisfied that in most cases recall is appropriate, did he mean recall in general or recall in IPP cases in particular? Secondly, when he was discussing the difference between decisions on executive recall on the one hand and dangerousness and public protection on the other, did he not think that there was a relationship between the two? When one is considering dangerousness, one might have a rather different view of what is required in relation to public protection if one or more recalls were inappropriate because they were for non-criminal, minor conduct that at no point presented a danger to the public?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

I thank the noble Baroness for those questions. As to whether I was speaking of IPP specifically, I cannot off the top of my head recall whether the 2020 work was specifically in relation to IPP, but certainly the 2023 work, which is the most recent and the most valuable and which I highly recommend everyone to read, was specifically in relation to IPP when the Government were considering what to do following the JSC report when concern was expressed that recalls might be being made inappropriately. That inspector’s report took a sample of recalls, studied them very carefully; it was thought that a small number were questionable but that the vast majority were appropriate on the basis of the information that the probation officer had at the time.

Up to a point, the circumstances of the recall are part of a general picture of the dangerousness of the offender—I accept that. But the real point is that, when the Parole Board comes to consider public protection, it will have much more information, very often much more up-to-date and fuller, than the information that was before the probation officer at the time, who might well have to take a decision in an emergency on very limited information, but because of the risk, as they see it, to public protection. So it is very difficult, in the Government’s view, to give the Parole Board power to go all the way back and say, “This was inappropriate”. However, having said that, I would like to come back to the question of recall when we get to Amendments 154 and 168, to be moved by the noble Lord, Lord Carter. It is a question of executive re-release on recall, which might be another way of approaching that problem. So that is the Government’s position.

Before I move on, let me say to the noble Lord, Lord Hastings, that the effect of the Government’s changes is that this recall after 14 years could no longer happen. In the press over the weekend there was an example of someone recalled after 12 years in the community, who sadly found that it was too much for them and took their own life. We do not know the full circumstances, but that could not happen if your Lordships and the other place decide to pass this legislation. That is a major change which I hope, combined with the reduction in the licence period, will significantly reduce these recall problems. I have not specifically replied to the noble Baroness, Lady Jones, or the noble Lord, Lord Woodley, and all the others because it is common ground that we need to do something. My task is to explain what we are trying to do and where we are trying to get to.

As far as this group is concerned, that leaves Amendments 156 and 157 on the question of secondary legislation or primary legislation to change the qualifying period. I take the point of my noble friend Lord Hodgson about Amendment 156. The Government are also well aware of the concerns expressed about using delegated legislation to amend primary legislation. These provisions have been included to give a certain degree of flexibility. The Government have no intention whatever of increasing these periods or reversing these changes, but see some advantage in the flexibility that that mechanism gives. None the less, on this point, as on others, the Government will continue to listen to the arguments and come back with a position on Report.

I hope that I have covered the various points. I have not addressed the wider points about the prison system in general; that is for another day and I look forward to a further debate, but I hope that I have replied sufficiently for the moment.

Photo of Earl Attlee Earl Attlee Conservative 5:45, 12 March 2024

My Lords, is my noble friend the Minister telling us that it is inconceivable that the Government would want to increase the licence period?

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice

I do not know that one would use the word “inconceivable”. The Government do not see any prospect of that happening at the moment.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee), Chair, Arbitration Bill [HL] Special Public Bill Committee, Chair, Arbitration Bill [HL] Special Public Bill Committee

My Lords, I thank everyone who has participated in this debate. It has proved useful: first, it is very important to set the scene, and I deliberately did not say a great deal. However, it is right to say that we owe a huge debt of gratitude to the Prison Reform Trust, to the noble Lord, Lord Moylan, to the late Lord Brown and the late Lord Judge, who campaigned fiercely on this, and to Lord Lloyd of Berwick, who fortunately is still alive and who has campaigned tirelessly. I just find a sense of deep disappointment—a matter to which I will return at a later stage—at the reluctance to be bold.

We have focused on four little points, and even on reducing the answer was not very strong. It is absurd—and I use that word advisedly—to think any Government would want to take the licence period back up. I very much hope that that amendment can in due course be agreed.

The problem really relates to the way in which the licence period operates. We need to discuss that further to see what the conditions are, and we shall come to that in due course, and to ensure that we bring the licence period to as satisfactory a termination as possible, bearing in mind—as the Minister fails to recognise—that the state has a very substantial degree of responsibility for the mental health problems that have been caused. When you talk of one year or two years, making someone stick to conditions which may not be entirely appropriate for a period of two years is a substantial burden, which can be mitigated by going to one year. But I am glad that the Government have an open mind. We shall see how open it is when we discuss the matter further.

Amendment 149 withdrawn.

Amendments 150 to 153 not moved.