Amendment 120A

Victims and Prisoners Bill - Report (4th Day) – in the House of Lords at 4:03 pm on 21 May 2024.

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Lord Bellamy:

Moved by Lord Bellamy

120A: Clause 41, page 39, line 32, at end insert—“(5) In section 32ZZA (imprisonment or detention for public protection: powers in relation to release of recalled prisoners) (inserted by section 48 of this Act), after subsection (3) insert—(3A)The Secretary of State must not be satisfied as mentioned in subsection (3) unless the Secretary of State considers that there is no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm (and section 28ZA(4) applies for the purposes of that assessment).”The Secretary of State must not be satisfied as mentioned in subsection (3) unless the Secretary of State considers that there is no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm (and section 28ZA(4) applies for the purposes of that assessment).””Member's explanatory statementThis amendment is consequential on my amendment of Clause 48, page 52, line 27, inserting new section 32ZZA of the Crime (Sentences) Act 1997.

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

My Lords, I am very grateful to all noble Lords who spoke in Committee to these matters affecting IPP prisoners and to all those who have continued to engage in constructive debate with us in preparation for Report. I fully share the desire to use this opportunity to do all that we reasonably can to help offenders serving the IPP sentence to progress towards release, where that is safe to do so. To that end, we have brought forward four substantive government amendments and are taking other important measures as well. Indeed, progressing IPP licence termination and swiftly considering cases for release remain one of the top priorities for HMPPS and this Government, and I emphasise that.

The first amendment, Amendment 139A, applies where the Parole Board directs the re-release of an IPP prisoner. The amendment grants the Secretary of State the power to decide that the recall should have no effect for the purpose of the two-year automatic period, which is the period before the licence automatically terminates. Under the current measures in the Bill, the two-year clock will be reset when an offender recalled during the automatic period is subsequently re-released by the Parole Board. This would mean they would be required to serve a further two years in the community before the licence would be terminated automatically.

However, the Government’s amendment would enable the Secretary of State to decide that the recall should have no effect on the automatic period if he considers it to be in the interests of justice, much as the noble Lord, Lord Carter of Haslemere, has proposed in his amendments to introduce a power of executive re-release, which I will come on to shortly. In these circumstances, if the recall is disregarded for the purposes of the automatic period, the clock will not reset on their release from prison and the offender would then be required only to remain on licence for whatever time remained of the two-year automatic period. I must stress, however, that this discretionary power would not apply to all IPP recalls in the qualifying period; it would be a matter for the decision of the Secretary of State in the light of all the circumstances.

The Government’s second amendment concerns the amendments of the noble Lord, Lord Carter—Amendments 137 and 146—to grant the Secretary of State the power to re-release a recalled IPP offender without the need to go through the Parole Board process at all and for the offender to benefit from the automatic period as if the recall had not occurred. Our Amendment 139B will permit the Secretary of State to re-release recalled IPP prisoners and mirrors a power that the Secretary of State currently has to re-release offenders serving determinate sentences—now referred to as risk-assessed recall review, known colloquially as RARR. This is an executive power, and it will be for the Secretary of State to decide if and when to use it. We have also included an amendment to enable the Secretary of State to impose licence conditions in a recalled IPP offender’s licence if the Secretary of State uses this power to re-release them on licence.

This amendment also, again, includes a parallel power for the Secretary of State to decide that the recall of an IPP offender should have no effect for the purposes of the two-year automatic period, again where it is considered in the interests of justice. This will ensure that the Secretary of State has the same discretionary power regardless of whether the decision to release a recalled IPP offender is taken by the Parole Board or by the Secretary of State using the RARR power. The noble Lord, Lord Carter, made a compelling case for his amendments in Committee. I hope that he will agree that the amendment introduced by the Government achieves the objectives of his amendments and that he will not press Amendments 137 and 146.

The Government’s third amendment concerns the amendment of the noble Lord, Lord Blunkett—Amendment 141—to put the IPP action plan on a statutory basis and require the Secretary of State to lay an annual report before Parliament. I fully recognise the noble Lord’s intention and I am particularly grateful for his significant engagement on this and other matters relating to this part of the Bill. We have therefore tabled Amendment 139C to require the Secretary of State to lay an annual report before Parliament about the steps taken by the Secretary of State in the reporting period to support the rehabilitation of IPP and DPP prisoners and their progress towards release from prison on licence termination.

The Bill includes a non-exhaustive list of the issues that it should address, including support for female offenders, those sentenced to detention for public protection and the engagement undertaken in the reporting period. The Government are committed to ensuring that the IPP action plan delivers tangible change by safely reducing over time the IPP population in custody and in the community, while still prioritising public protection. Through the IPP action plan, HMPPS is putting in place further measures to boost the support of those serving IPP sentences in custody and in the community, including a new policy to deliver multi-disciplinary progression panels to oversee cases at critical points, such as that early period following release or the period following a recall to custody. Delivery of the action plan is overseen by a senior IPP progression board chaired at a senior level which meets quarterly. I have asked that quarterly reports be supplied to Ministers, to ensure that the action plan is effective.

Amendment 139C requires the Secretary of State to lay a report annually on the steps taken to support the rehabilitation of offenders serving an IPP or DPP sentence. I hope that this further demonstrates to the House our commitment to the delivery of activity to support those serving IPP and DPP sentences towards prospective safe and sustainable release, and to ensuring that the Government remain accountable to Parliament. We have also agreed to publish the IPP action plan. I hope that in due course, in these circumstances, the noble Lord, Lord Blunkett, will feel able to withdraw Amendment 141.

In addition to the senior IPP progression board, an external stakeholder challenge group has been set up to ensure that independent bodies, campaign groups and other organisations can scrutinise and hold HMPPS to account for the work that it is delivering to support IPP prisoners to progress successfully through their sentences. The external stakeholder challenge group will have representation, including UNGRIPP—an association of represented prisoners—the Prison Reform Trust, the Howard League for Penal Reform, the Prisons and Probation Ombudsman, the independent monitoring board and the Royal College of Psychiatrists. I make particularly mention of UNGRIPP, which fights independently for the interests of IPP prisoners with great tenacity and determination. This highly effective challenge group does, I trust, meet the thrust of Amendment 142, tabled by the noble Lord, Lord Blunkett.

As a further reassurance, the Parole Board is in the course of setting up a specific IPP taskforce which it is hoped will be operational to coincide with Royal Assent of this Bill, to ensure a coherent and specific approach to IPP prisoners to reduce delay and bring to bear particular experience in the treatment of these prisoners. That is in itself supported by a liaison group working hard between HMPPS, the Ministry of Justice and the Parole Board to reduce delays and to ensure that these cases flow smoothly through the system.

Lastly, our fourth amendment, Amendment 138ZB, focuses directly on those serving a DPP sentence and is prompted by Amendment 138A, tabled by the noble Lord, Lord Blunkett, to halve the qualifying period for those sentenced as children to 18 months. We recognise the specific challenges faced by this cohort. Our amendment will therefore reduce the qualifying period for those serving the DPP sentence to two years, which I hope the noble Lord will support and accept.

I will at this point deal further with DPP prisoners, since I know that the noble Lord has tabled further amendments which aim to support the progress of those serving the DPP sentence. As already indicated, the annual report to Parliament will include a specific focus on how HMPPS has supported the needs of those sentenced as DPPs and their sentence progression. The noble Lord’s Amendment 144 would require the Secretary of State to refer DPP cases annually to the Parole Board. While we understand the reasoning behind this amendment, such an annual referral could have a detrimental effect if it simply leads to increased instances of the Parole Board refusing release, as it undoubtedly would in some cases. We do not want to have a statutory commitment which could set people up to fail.

We do, however, recognise the intent behind this amendment and so we will update HMPPS operational policy so that there is a presumed annual referral of DPP cases to the board unless there is a clear reason why this would not be beneficial to the individual concerned. Moreover, the published policy of the Parole Board is to prioritise DPP cases. I also thank the noble Lord for his further DPP Amendment 143, which would require the Secretary of State to provide six-monthly sentence planning meetings for anyone serving a DPP sentence who has not been previously released by the Parole Board, setting out steps to enable release.

The noble Lord is entirely right that effective sentence planning and reviews are key to giving those serving IPP or DPP sentences the best prospect of progressing towards a safe and sustainable release. However, we see this primarily as an operational rather than a statutory matter. That said, as I have already affirmed, we recognise the need to provide tailored support for DPP offenders. So, in addition to reducing the qualifying period to two years to help those who have been released, we have extended the scope of the psychology case review initiative so that now every DPP prisoner, whether never released or recalled, has had a case review and, importantly, will be subject to quarterly reviews of their progress from now on.

Further, senior operational leaders across HMPPS have been commissioned to produce operational delivery plans, within which there must be a specific focus on supporting and progressing DPP prisoners. This means expediting any required prison transfers, or access to required services or interventions. There is now a clear expectation that senior leaders know how all the DPP prisoners in their areas are progressing and that prisons and probation are being held to account for their work with them.

Introducing a statutory requirement for six-monthly reviews to take place would remove the flexibility to deliver an approach best suited to the needs of the individual. I thank the noble Lord again for his contribution to the debate on this matter in his amendments. I hope my response and the operational changes made by HMPPS have reassured him and that he will not feel the need to press his Amendment 143. I commend the Government’s amendments to the House. I beg to move.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 4:15, 21 May 2024

My Lords, I rise to address the amendments that stand in my name. The purpose of these amendments can be briefly stated. It is to try to achieve a measure of justice for those on whom IPPs were imposed during the limited period 2005 to 2012. It is important to bear in mind what Lord Lloyd of Berwick, then Lord Brown of Eaton-under-Heywood, and then Lord Judge all did to try to right the problems that had been caused by this sentence. It was a sentence that Lord Judge described as the most draconian on the statute book, apart from a discretionary life sentence. I am extremely grateful for all that the Lord Chancellor and the Minister have done to try to deal with these issues, but we are side- stepping a fundamental issue: the way in which we release those who are subject to this sentence. We should not do that, and this House has a responsibility.

Of the amendments that stand in my name, in the time available, I wish to speak to only one: Amendment 149A. It is an attempt to compromise; to do at least something to give hope and provide justice. It leaves the release test as it stands but requires the Parole Board to take into account the concept of proportionality and other factors in making its determination. It is designed to give hope and a sense of justice to those who are behind bars under IPPs, and their families. There are three reasons I wish to highlight.

First, although a few were given IPPs who might have been given the most draconian sentence—a discretionary life sentence, under pre-2003 legislation, as a result of decisions of the Court of Appeal in the Kehoe and Wilkinson cases—the vast majority would have been given determinate sentences if the IPP sentence had not been put on to the statute book, or would have been released long ago without any risk assessment. The way our system worked historically and works today is what would have happened to them. Given that the vast majority of those under IPPs would have had that, how can it be just that, eight years later, we have done nothing—that is, in effect, what has happened —to revise this and put the Parole Board in a position to permit their release?

Secondly, if one looks at those who were sentenced in the period up to 2008, some were imprisoned who would have received a sentence of under four years. It is incredible to think that we are now releasing prisoners who have been sentenced to under four years because the prisons are overcrowded. Why can we not have regard to that? Again, this is unjust.

The third reason is that there can be little doubt— I referred to the evidence when I spoke in Committee—that the mental health of many of those who are still detained or have been recalled has suffered as a result of this sentence. The evidence is very strong and the effect on them is a matter on which we ought to reflect. The vital factor here is state responsibility—and, fortunately, we are beginning to live up to our responsibilities as a state. The position can be very briefly explained.

There is significant agreement that, if you do not know when you are going to be released, a long period of detention causes huge mental health problems. It is quite different for those who receive discretionary life sentences for the most serious crimes, described by Lord Bingham as sentences of a

“‘denunciatory’ value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years”.

Such sentences are deserved in those cases—you can understand why people receive them—but how can it be just to keep in prison those who, during this specific eight-year period, committed something for which, before and today, they would have had a determinate term? It is no wonder that they and their families feel injustice.

I am sure that, if this point were put properly to the British public, as it is now being put in the media, they would understand. Therefore, I find it difficult to follow why people cannot go along with a measure of reform.

The crux of this amendment is to require the Parole Board to take into account proportionality—that is, looking at the length of term served as proportionate to the original offence, and some of these offences were not that serious—together with other factors, when determining whether the test of public safety has been met. It is vital to appreciate that the overwhelming majority of these people would have been released without any risk assessment. Looking at the position today, how can it be just that they should be kept there?

Now, the Minister might say that there is a provision in the Act that could be relied on. It is difficult to know precisely what the Minister will say, because he has not said it, but I am sure that is no answer to what I have said, because the difficulty is that what is in the current Bill does not require the Parole Board to do what this amendment requires it to do, which is to have regard to proportionality and other factors that affect the position. To my mind, there is a very simple question. It is 11 years after the abolition and I pay particular tribute to the noble Lord, Lord Blunkett, who has led on, and accepted responsibility for, dealing with this. It is a great shame that others will not do the same. We should, as a state, accept responsibility and bring about at least one step towards reform. It is not what I believe we should do, but I put this forward and support it as a measure of compromise.

If you were to ask the British public whether they believe in justice, the answer would be yes. Do they believe in being protected? The answer is yes. But should you balance protection against other factors, such as proportionality? The British public are wiser than to think that they won a one-horse race; they believe in justice as well. You can see that from what we have always had as our system—a determinate sentence for anything but the most serious offences—and most prisoners who are detained did not commit the most serious offences. Therefore, it seems clear to my mind that this proposal is one that would command the support of the public, properly explained and properly understood.

That is all I think I can say at this stage, except to say that it seems to me that this is an issue of such fundamental importance that I wish, in due course, to test the opinion of the House on the matter, as a matter of justice and of reflecting our values in the United Kingdom—or should I more technically say in England and Wales?—and also to remove a stain from our statute book. We can do no less and we must accept the state’s responsibility.

I do not wish to take up more than the few seconds that are left to me on the other amendments standing in my name, so I will simply say this. First, it seems to me that I need say nothing about Amendment 138; what the Government propose deals with it. I have left Amendments 134 to 136, which stand in my name, requiring an annual review; from what I have been able to gather, there is no resource impediment to an annual review. It is plainly just that the prisoners should have an annual review; they had one and it was taken away. It seems to me incredible that the Government will not accept that, but that is their position. I hope we can find salvation in the Parole Board adopting this as I believe, from what I understand, that it is not unsympathetic and feels that it has the resources to be able to do it.

The last of my amendments, Amendment 139, is a simple, technical amendment. I hope there is no risk that anyone will try to do it, but it is to stop the statutory power to alter the minimum period of the licence being moved up as opposed to down. But those are not the critical amendments: Amendment 149A is, and on that, as I have said, I will wish to seek the opinion of the House in due course.

Photo of Lord Blunkett Lord Blunkett Labour 4:30, 21 May 2024

My Lords, I know that we have had extensive debates on the range of issues on IPP and DPP. I will try to be brief, because everyone will want to reach the Statement on the infected blood scandal.

I want to pay tribute to those on my own Front Bench for their support in some difficult and tricky issues, and for their understanding, and to Peers from every corner of this House who have worked tirelessly together to work out how we can make progress and how we can help both those caught up in prison, those on licence and in fear of recall, and of course the families and campaigners. I too pay tribute to UNGRIPP and those who have been campaigning tirelessly alongside them. It has at last reached the public ear—in broadcast, print and online media there is now real attention to this issue, and a sympathetic hearing. That is a very good thing.

I want to say thank you to the Minister. Thank you for being prepared to engage with those committed, and for the concessions that have been outlined this afternoon in terms of my amendments. Government Amendments 133B, 138ZB, 139A, 139B and 139C deal substantially with my Amendments 41, 42, 134, 138A and 144. I am very grateful for both the sensitivity and understanding, and the ability to give, in a period leading up to a General Election, which is difficult for any Government to do on issues such as these, which are often toxic in the public arena. Together with the current Under-Secretary of State and his equivalent in the Commons, some progress—not as much as we, or those campaigning, would like, but some—has now been made on the Bill.

My Amendment 149—I have agreed with the Minister that we might come back to this when we debate the Criminal Justice Bill—is about a technical readjustment of the Rehabilitation of Offenders Act so that IPP and DPP prisoners are not disadvantaged. This afternoon we have made progress on the action plan and how it will be updated and implemented; the progression board and its transparency and reporting; the challenge group that will be overseeing and, as it says, challenging what is happening administratively; and the commitments in relation to parole.

I just want to make one comment about probation. There is a new head of Probation—Martin Jones—who was the chief executive of the Parole Board. He understands these issues very well. I have real confidence in him, as I do in the head of the progression board, Chris Jennings; they get what we have been talking about and will move heaven and earth to make the system work. But the Probation Service has to change its outlook and risk aversion, because we have a situation at the moment, because of the enormous pressure on the Prison Service and the lack of rehabilitation that that brings, where the Government have felt it right to release people early and to slow down prosecutions, while the Probation Service recalls people on licence all the time, filling the places that the Government are unfilling. It is like having a washbasin with the tap on and the plug out.

We have to make urgent progress in both getting release, making those spaces available, and not returning people to prison—not least because Ian Acheson, a former prison governor who has been working with the Government over a number of years, said recently that 50% of those currently in prison are taking illegal substances. When they are adjudged to have taken an illegal substance, their likelihood of being able to get parole is immediately reduced. Should they revert when they are on licence, having been subject to illegal substances while they were in prison, they are brought back into a place where illegal substances are readily available. We have got to stop the cycle and we can do it only with the good will of Ministers, future Ministers and those working in the service, who need to be brave —so thank you for what has been done so far.

I turn to Amendment 149A, in the name of the noble and learned Lord, Lord Thomas, who has just spoken. I want to draw attention to a court case that took place on 9 May this year, overseen by Lord Justice Popplewell. This was the case of Leighton Williams, who was sentenced in 2008 and who, until 9 May, was in prison under an IPP because he was at the time 19, not 18 or younger. It was judged in that case—and these are all technically difficult cases—that the original judge had misunderstood and applied an IPP inappropriately when the sentence should have been for five years in a young offender institution. That having been decided, Lord Justice Popplewell released Leighton Williams immediately. This cannot be a precedent, but it indicates that the noble and learned Lord, Lord Thomas, is right in relation to the test of what is appropriate and proportionate in the work of the Parole Board. I hope that the task force that is now going to be established within the Parole Board will help provide focus. While understanding entirely the position of my own Front Bench and Whips, I feel obliged to vote for this amendment, having added my name to it, believing that it is right that there should be a better proportional test.

I repeat that the campaigns have made a difference to the work that has gone on in relation to worries about mental health and who deals with mental health provision in the service. Is it the provider or the NHS? How do we get it right for individual prisoners who really need intensive support? The campaigners have raised all those issues with all of us, and they deserve credit for it. We are not entirely there yet, but we have made some progress. I am very grateful to the Minister for his understanding and collaboration in making that possible.

Photo of Lord Moylan Lord Moylan Chair, Built Environment Committee, Chair, Built Environment Committee

My Lords, it is a pleasure to follow the noble Lord, Lord Blunkett, and in particular to follow him in expressing a very large degree of gratitude to the Government. Although one is going to end up disagreeing with them on certain narrow points in the course of this short debate, the Government have introduced amendments in the Commons which are extremely helpful to IPP prisoners who are out on licence, and today amendments have been introduced which deal with the very good points made by the noble Lords, Lord Blunkett and Lord Carter of Haslemere, allowing them to withdraw their amendments.

I do not think it is at all an exaggeration to say that more has been achieved, both operationally and legally, for IPP prisoners in the past few months than in the preceding 12 years. I am sure that a great deal of that is due to the personal efforts of the Lord Chancellor and my noble and learned friend Lord Bellamy on the Front Bench. I wish to express my gratitude and a degree of congratulation.

I also want to say—here I find myself again echoing the noble Lord, Lord Blunkett—that I am very impressed with the effort and determination of the officials charged with taking responsibility for clearing up this scandal; they really wish to do something. I wish them well, and I hope that that continues for as long as it needs to, whatever the character of the Government in power.

Before I turn to Amendment 145 in my name, I wish to say that there are some amendments in this group tabled by Back-Bench Peers which have not found favour with the Government. My Amendment 145 is one of them, and so is Amendment 140, in the name of the noble Baroness, Lady Burt of Solihull, and Amendment 147, in the name of the noble Baroness, Lady Blower. It is not for me to make their speeches advocating their amendments; I simply wish to say in advance of their doing so that I am very supportive of what they are trying to do in those amendments and of their aims.

Amendment 145 in my name was not actually drafted by me. As noble Lords who were present in Committee will remember, it was in fact drafted by the late Lord Brown of Eaton-under-Heywood, who felt passionately about this and, coincidentally, whose memorial service is happening later this week. On social media, it has been dubbed the “Simon Brown Memorial Amendment”, as testament to the passion that he brought to this topic and the efforts that he made.

I am not going to divide the House on this for two reasons. The first is that, despite indications otherwise, perhaps, in Committee, I understand that the Labour Party would abstain on this amendment if it were pressed to a Division. However, I wish to make a few remarks about it. First, I remind noble Lords what it seeks to do. There are two things, really. It would reverse —here I am going to use the words in a non-technical sense, not being a lawyer—the burden of proof in front of the Parole Board so that, instead of the prisoner having to demonstrate that he or she is safe, it would be for the Parole Board to demonstrate that they are dangerous. There is nothing radical about this proposal because the power to make that change was given to the Secretary of State in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. All that this part of the amendment seeks to do is, so to speak, trigger that and oblige the Secretary of State to make a change that he is already empowered to make. The second thing that the amendment would do is introduce a test of proportionality which the Parole Board can apply. I will turn to that in just a moment.

I am not going to repeat the arguments I made in Committee in favour of the amendment, but, while the noble and learned Lord, Lord Thomas of Cwmgiedd, could not anticipate what the Minister was going to say at the end of the debate, I can refer to what he did say in Committee specifically on this question of proportionality, because it is in Hansard for 12 March, at col. 1965.

My noble and learned friend Lord Bellamy on the Front Bench said:

“The Government’s position, frankly, is that the word ‘proportionate’ causes more difficulties than it solves”.

The crucial words are:

“It suggests that the test should be some sort of balance between the risk that this prisoner may present to the public and some sort of fairness or other consideration of the particular interests of that prisoner”.

My noble and learned friend has put it exactly as I would put it, but there is a huge difference between prisoners who have been given a determinate sentence and who, if they are refused parole, will nonetheless be released at the end of their sentence, whatever the risk, and IPP prisoners who, if they are refused parole, are returned to an indefinite sentence. Fairness is a consideration and justice is a consideration, and I think many noble Lords understand that completely. It may be the case, as my noble and learned friend went on to say, that

“the public protection test is a public protection test: that is the only criterion as far as this Bill is concerned. While it might be appropriate for prisoners with determinate sentences to have that as the only criterion, it is not appropriate for IPP prisoners, and some sense of fairness and justice needs to be brought in to play.

The second reason that I will not be dividing the House is that, as he has already explained, the noble and learned Lord, Lord Thomas of Cwmgiedd, has tabled Amendment 149A, which drops the issue of burden of proof, as I had, and focuses solely on this point about proportionality. I am persuaded by his arguments that that is the key point. It also might be easier for noble Lords to vote for a trimmed-down amendment that focuses on that very narrow point. So, if the noble and learned Lord does, as he has indicated, divide the House on Amendment 149A, while I will not be pressing Amendment 145 to a vote, I will join him in the Lobbies on Amendment 149A.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 4:45, 21 May 2024

I would like to say a few words about Amendment 141 in the name of the noble Lord, Lord Blunkett, to which I have put my name, and also, briefly, about Amendment 145 in the name of the noble Lord, Lord Moylan, to which, again, I have put my name.

Before making those remarks, I join both noble Lords in paying tribute to the noble and learned Lord the Minister for all the work that he has been doing to find a way of progressing this deeply damaged group of prisoners towards safe release. I use the words “deeply damaged” because, as the noble and learned Lord, Lord Thomas, has reminded us, there is a grave effect on them of being detained for so long under preventative sentences with no prospect of release. This has had the result that many of them suffer from a variety of conditions that make the process of releasing them so much more difficult than might have been expected to be the case when they were sentenced. They have faced the trauma of detention in overcrowded prisons without the support they needed, mental health problems, substance issues and various other points that the Minister himself told us about in Committee.

It is impossible for us, who have not seen and studied the files that have been kept on the cases of each of these prisoners, to appreciate the magnitude of the problem that the prisoners themselves face and that faces the Parole Board too. All we have are the numbers: the number of those in the various groups who have never been released, the time they have remained there in comparison with the tariff which they would have faced had they been given a determinate sentence, and the number of those who have been recalled to prison because their licences have been terminated.

The bare statistics are as depressing as ever, with no end in sight for so many of them. That is why so many of your Lordships, including the two noble and learned Lords who are no longer with us, have been pressing for so long for things to be done to enable the situation to be reformed. The various amendments that the Minister has introduced have gone a long way towards mitigating the problem that these preventive-sentence prisoners have been facing for so many years. The changes that have been made to the process for the review and termination of their release from prison on licence are also especially welcome.

Amendment 141 in the name of the noble Lord, Lord Blunkett, seeks to put the Government’s existing action plan for this group of prisoners on to a statutory basis. I will not go over the details, but I draw attention to the wording of one provision in the opening subsection of the proposed new clause, which sets out in clear language the purpose of the action plan proposed by the noble Lord, Lord Blunkett. It says that its purpose is

“to ensure that all possible steps are taken to ensure the earliest possible safe release and progression” of this group of prisoners, so it flags up at the outset what this action plan is designed to do.

When we were in Committee on 12 March, I asked the Minister whether there was some way of getting that purpose clearly identified in the existing IPP action plan and of communicating that purpose to the prisoners who are subject to the system, so that they know what the plan is designed to do. The Minister was kind enough to say that this was certainly something that he would take away when considering the Government’s position. The amendment to which I was referring then was about review—not the action plan that Amendment 141 is now talking about—but the need for a stated purpose is the same point. So I would be grateful if the Minister could say whether the Government’s plan as now proposed states what its purpose is, and, if not, whether he would be willing to include a purpose to that effect before the plan is finalised.

As far as Amendment 145 is concerned, I really do not need to say very much, in view of the very thorough way in which the noble Lord, Lord Moylan, has discussed the subject and plainly explained his reason for not pressing the amendment. I appreciate and agree with the various points he has made. I agree with him that Amendment 149A of the noble and learned Lord, Lord Thomas, should be preferred, because it focuses on the key issue of proportionality. It preserves the existing test but highlights proportionality as a crucial point that must be addressed. For these reasons, if the noble and learned Lord, Lord Thomas, does test the opinion of the House, I propose to vote in favour of it.

Photo of Lord Carter of Haslemere Lord Carter of Haslemere Crossbench

My Lords, I am going to speak to four amendments in this group: Amendments 137 and 146 on executive release, on which I can be very brief; a new amendment in my name, Amendment 148; and a few words about Amendment 149A, which was tabled by the noble and learned Lord, Lord Thomas, to which he and others have already spoken.

Starting with executive release and Amendments 137 and 146, I am delighted and grateful to the Minister for bringing forward his Amendment 139B, which incorporates neatly into one clause those two amendments, which I will now obviously not press. I have just one question on the Government’s amendment: as regards the licence being treated as having remained in force following executive release if it is in the interests of justice, what sort of cases are covered by the “interests of justice”, a phrase which was not in my original amendment? I would be grateful if the Minister could say a few words about that.

As I seem to be on a bit of a roll as regards my amendments being accepted, Amendment 148 is a new amendment but on the same theme of helping to reduce the time spent in prison following a recall. This is about ensuring that IPP cases will be referred by the Secretary of State to the board within 28 days, or earlier if the prisoner makes written representations about the recall. This 28-day deadline already exists in statute for determinate sentence prisoners, and my amendment simply requires the same thing for IPP prisoners, not unlike executive release. There is no reason for any difference. Many recalled determinate sentence prisoners will involve more preparation before referral to the Parole Board than IPP prisoners, so why treat them differently? Since it is currently MoJ policy, as I understand it, to refer recalled IPP prisoners to the board within 28 days, let us be consistent and make it a statutory duty, as with determinate sentence prisoners.

Your Lordships may ask what difference it will make, given that it may be many months, if not years, before the board then considers the case. On paper, it is perhaps only a little, but it is only once the case is referred to the board that the process towards a paper or oral hearing can be initiated. It is easy to forget that every day in prison matters hugely for the prisoner concerned, particularly just after the psychological trauma of a recall, with all the frustration and despair that involves.

Although this amendment is only a small step when set against the unfair delays that currently arise at the board stage, it should make some difference for IPP prisoners to know that there is at least a statutory time- table governing the immediate aftermath of a recall. A statutory deadline would also mean the Secretary of State would have to ensure adequate resources were put into ensuring that a properly documented referral can take place within that timescale. I make no apology for that. Every day in prison matters hugely to the prisoner concerned. So I very much look forward to the noble and learned Lord saying, as he did with my executive release amendments, that he sees force in that one.

I want to say a few words about Amendment 149A, which has been spoken to by other Peers and was tabled by the noble and learned Lord, Lord Thomas. I very much support this amendment. The need for the public protection decision to take into account the proportionality of the term served to the seriousness of the offence is especially crucial in respect of IPP prisoners, because it is one of the main reasons why the sentence is so “unfair” and “indefensible”—the Government’s words.

The Minister may say that proposed new Section 28ZA(9), in Clause 41, already allows the Parole Board to take into account any matters it wishes, including length of time served, when making a public protection decision. As the noble and learned Lord, Lord Thomas, explained, the problem is that, unlike the matters listed in proposed new Section 28ZA(5), the board is not required to take this into account and frankly, there is no indication it ever would. It should therefore be required to do so, and this amendment would achieve that.

The Minister may say that this is not relevant to the risk the IPP prisoner may still pose, but the risk that a prisoner may reoffend if they are released is not new or unique to IPP prisoners, as we have heard. The Government accept it daily when determinate sentence prisoners are released on licence. The Justice Committee said in its third report that some determinate sentence prisoners will have committed far more serious offences and present much more of a risk on release than an IPP prisoner. Yet, society lives with that risk because the terms of their fixed-term sentence allow them to be released, however dangerous they may still be. Why is society prepared to accept the risk in their case, but IPP prisoners are told that society is not prepared to do so in theirs? Is that justice, especially given that less than 10% of serious reoffending is by life or IPP prisoners and overall reoffending rates on release are lower for IPP prisoners?

I want to give a couple of examples that I have been given permission to use, because they vividly illustrate this point. Aaron Graham punched a man in the face when he was 25. He was convicted of GBH in 2005 and sentenced to IPP with a tariff of two-and-half years. He has now served more than 20 years. Had he committed the offence 12 months earlier, before IPP was introduced, under the law at that time he would probably have been sentenced to about five years and been out on licence after two-and-half years. Luke Ings committed two robberies and assault in 2006, when he was just 17. He was given an IPP sentence and a tariff of 18 months. He has served 18 years of a DPP sentence—longer than he had been alive at the time he committed the offence. Again, if he had committed the offence a year or two earlier, he would have been given a determinate sentence and been out on licence after 18 months.

These are two cases among many, and they amply demonstrate the need for an explicit proportionality assessment, taking into account length of time served. We must grasp this nettle now, since it could be the last chance for many IPP prisoners. If we are not to have a resentencing process, this is an essential alternative in order to mitigate continuing unfairness and injustice. I look to forward to hearing the Minister’s response.

Photo of Baroness Blower Baroness Blower Labour 5:00, 21 May 2024

My Lords, I will briefly repeat some of the remarks I made in Committee about the issue which is now dealt with in Amendment 147. The cases the noble Lord, Lord Carter, mentioned demonstrate amply why many serving and recalled IPP prisoners have simply lost hope of ever being properly released. The purpose of Amendment 147 is to create, on a statutory basis, a mentor and advocate scheme to add to the support which may be available to IPP prisoners.

When I spoke about this in Committee, I was quite gratified by the Minister’s response, notwithstanding the fact that such an amendment has not found favour. The Minister said, having listed the kinds of support that exist for IPP prisoners:

“That is not to say that there could not be better organisation of voluntary agencies or, despite what I have said, some other route to consider whether there are ways of strengthening the support of prisoners on some non-statutory basis”.—[Official Report, 12/3/24; col. 1966.]

Since the amendment, in its current form as Amendment 147, has not found favour with the Government, I urgently ask both the Minister and the Government to look at offering the kind of additional support which would have been offered in an advocate and mentor scheme.

It is clear from everything that has been said from all sides of the House about the current situation of IPP prisoners that it is incumbent upon us to do everything we can. Although I understand that a scheme like this will not end up being statutory, it could provide added support for those prisoners and perhaps some small measure of hope that they may ultimately be treated somewhat more fairly than hitherto.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I am very pleased that the Government and the Labour Front Bench have improved this Bill, because it was quite a difficult one when it was first presented. However, it would be so amazing if they both accepted this last little tweak of Amendment 149A. Although it applies to very few people, this is an issue of justice and of unfairness that could be put right. I know it is very late, but that amendment is very worth while.

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

My Lords, I will speak to Amendment 140, which is in my name, although I support all the amendments tabled by noble colleagues in the IPP group.

I thank all the groups involved in this that have supported us. I also thank the Minister himself for the huge efforts he has made on behalf of IPP prisoners, and the Government for the immense distance they have travelled so far in repairing the damage done by this sentence on the psyches and futures of the remaining rump of unfortunate individuals left serving IPP sentences. We all want to help them progress and leave this torturous situation, but we all know that it must be done in a safe way that will not endanger the public. Amendment 140 would go a huge distance towards achieving this for those the system has damaged the most: those stuck in prison three or more years after their tariff has expired, whether or not they have been released and recalled in the meantime.

Under the current law, any prisoner who is being transferred to hospital will be entitled to the same level of aftercare as any other individual who has been in hospital under qualifying sections. This is an estimated 600 prisoners out of the almost 3,000 still in the system. Section 117 of the Mental Health Act 1983, on aftercare, provides wraparound care, which can include forensic psychiatrists working with police, probation, victim liaison officers, and local health and social care practitioners, as appropriate, under MAPPA auspices in their local areas.

For prisoners who have been sectioned, the duty means that multiagency planning starts before release and that prisoners come to their parole hearings with a package of support and care ready for them. This will enable them to live safely on the outside. It is hugely successful and throws a light on a path that would lead to many more successful releases. Over 90% of IPP releases by the Parole Board of prisoners who have had Section 117s between November 2021 and August 2023 would have had aftercare plans before release. This is double the percentage of IPPs who did not have Section 117s.

If you speak to any practitioner involved in the parole process, they will tell you that the number one problem preventing the release of people stuck in prison on this sentence is the lack of a package of support in the community to give the Parole Board confidence that they can safely be managed. With an aftercare package provided by health and social care, in consultation with probation, much more care is taken to ensure that the basics—the scaffolding on which the individual can rebuild their lives—are covered. This scaffolding may include suitable accommodation and support as needed from an allocated psychiatrist, working with police, probation, victim liaison officers, local health and social care practitioners, et cetera. Arguably, all prisoners should be entitled to this, but sadly we know that the system often lets them down.

I will give two real-life examples. Their names have been changed for obvious reasons. I am calling them John and Peter. John was sentenced when he was 15 for a minimum term of under a year, and he spent 15 years in prison. Peter was sentenced at the age of just 13. He had a DPP with a minimum of 12 months, and he spent 17 years in prison.

John had a traumatic childhood, which included abuse and being put in care. His first 10 years in prison were chaotic. Over time, it became clear that he had developed a serious mental disorder in the form of a personality disorder. In one prison, the prison psychologist suggested that he should be assessed for a transfer to hospital. He consented and was duly transferred under the Mental Health Act 1983, so he was entitled to the support afforded by Section 117. He said that

“for the first time ever I was able to go to the Parole Board with a really good and supportive release package on the table”.

It has not been all plain sailing for John since his release. He was rearrested for a breach of conditions several months later, but he knows that the support is still there to help him face the Parole Board again and to succeed when he is released. The support package will last for as long as John needs it.

Contrast this with Peter’s story. Peter initially did very well in custody and was first released when he was just 17. He has had long periods of stability, but then things broke down and he has been recalled five times. He now lives in a constant state of anxiety that he will be recalled to prison. He says that living at an endless risk of recall is “like living on eggshells”, and that his sentence has

“given me bad anxiety and paranoia—even when I am the victim I am the one who gets arrested whenever I contact the police— I fear going out and getting recalled because something might happen”.

On his latest release, Peter went to a special mental health approved premises, but was discharged from prison without his medication. After 12 weeks in a hostel, his accommodation entitlement was up and he had nowhere to go. His last recall followed a significant deterioration in his mental health and a spell of time as a voluntary patient in a mental health ward from which he was discharged without suitable accommodation and support. He said he was glad to be back in prison because at least he “couldn’t be recalled”. Because he has never been sectioned under the Mental Health Act 1983, he is not entitled to the same wraparound care as John. But why should he not be?

The answer, obviously, is that he should, but noble Lords may justifiably wonder what the cost and resource implications might be. I am not necessarily asking for a blank cheque. It is a few hundred people in a system which is already helping tens of thousands of individuals who have never been in prison and are discharged each year from mental hospitals under Section 117. They are a drop in the proverbial ocean. To give this level of help is a once-in-a-lifetime investment for those stuck prisoners: there will be no new IPP prisoners to become even further damaged by the IPP sentence—thank goodness. This one investment would be so successful in helping that rump of poor individuals.

I have a premonition that the Minister may have some very helpful things to say in response to Amendment 140. If he cannot see his way to supporting it today, can he at least agree to meet the experts from the forensic faculty at the Royal College of Psychiatrists and me? If he is agreeable to this modest request and my premonition comes true, I could well be persuaded not to press Amendment 140 to a vote.

Photo of Lord Garnier Lord Garnier Conservative

My Lords, I wish I could speak as eloquently as a number of those who have already spoken—I am sure that the noble Baroness, Lady Fox, will do so in a moment. We have travelled quite some way over the last few weeks, to a large extent due to the noble Lord, Lord Blunkett, the noble and learned Lord, Lord Thomas, and other colleagues of his on the Cross Benches, and my noble friend Lord Moylan, who has been our shop steward in our discussions with my noble and learned friend the Minister.

I hope I will not embarrass my noble and learned friend by repeating what others have said about him, but it is clear that without his willingness to listen and his understanding of the deeply serious problems that IPPs present, we would not be where we are today. I salute him for his patience and kindness in listening to me and in understanding the plight of IPP prisoners. As a Government Minister—particularly one in charge of the justice system and the prison system—the most important phrase that concerns you when you get up in the morning, or go to bed at night, and think about a Bill such as this is “the protection of the public”. We have heard him use that expression any number of times during our discussions. The great advantage we have had in talking to him is that we have had discussions, not rows. The whole temper of the debate this afternoon demonstrates that, across the House, we want a discussion because we want to reach a just and fair answer to this very difficult problem.

I have co-signed a number of the amendments on the Marshalled List, but I want to concentrate, reasonably briefly, on Amendment 149A, to which the noble and learned Lord, Lord Thomas, and others, have spoken. It seems to me to encapsulate the essence of what we are trying to do: yes, to ensure the protection of the public when it is necessary to do so, as the Minister wishes to do, but also to bring a degree of proportionality into the decisions that have to be taken by the Parole Board. There are no double negatives in this proposed new clause; there is a straightforward fixation upon doing what is just and fair.

Many noble Lords will have read the terms of the noble and learned Lord’s proposed new clause, but really one has to read carefully only subsection (2) of it to see that it allows for the Government—any Government—to protect the public, but also allows for our justice system to end the monstrosity which is the injustice and the unfairness of the IPP system. We have had two examples from the noble Lord, Lord Carter, and two more examples from the noble Baroness, Lady Burt, but there are many, many more. Those are the prisoners who have survived, but bear in mind that there are a number of IPP prisoners who have died by their own hand because they have run out of hope. The one thing that a justice system must provide is the ability for a prisoner to get better, to rehabilitate, to return to society and to make his or her way in the world.

Subsection (2) says that

“the Secretary of State must by order pursuant to section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 … direct that, following the prisoner’s referral to the Parole Board they will not be released unless the Board is satisfied that, having regard to the proportionality of the term served to the seriousness of the offence or offences of which they were convicted”.

Come back to the 18-month tariff, come back to the two-year tariff, and see that these men are in prison 18 years after being sentenced, nearly two decades after that tariff has expired. Importantly, the subsection also refers to “any other relevant factors”. The Parole Board is not required to just open the door and release them regardless because they are still there 20 years later, well beyond their two-year or 18-month tariff. It can take into account any other relevant factors. That could be the mental instability of the prisoner concerned or any number of characteristics or behaviours that the prisoner demonstrates, which demonstrate to the Parole Board and those who advise it that this particular prisoner—albeit he has served 20 years beyond his two-year tariff—is still, none the less, unsafe to release.

The burden must surely be on us, as representatives of the state in your Lordships’ House and as makers of legislation, to do things which promote fairness and justice, in a way that is transparently sensible. If I may say so, Amendment 149A speaks nothing but common sense, justice and fairness. Even at this very late stage of the Bill, I urge the Government to have one more think. This is not a matter of Labour against Conservative, Cross-Benchers ganging up on the Government, or the Liberal Democrats ganging up with the Labour Party against the Government. It is not even a matter of a couple of lily-livered, pinko Conservative drips ganging up on their Government and trying to engender a rebellion.

Noble Lords:

Oh!

Photo of Lord Garnier Lord Garnier Conservative

It is a cross-party justice question. If I cannot stand up and speak for justice as a Conservative, I am in the wrong business. I will be voting with the noble and learned Lord, Lord Thomas, this evening.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, how do I follow those words about pinko commie Conservatives? Quite easily.

Perhaps we would not start from here, but as we are here, I too warmly welcome the Government’s concessions. They show that the Minister has been listening in Committee and at all the meetings. I hope that his listening continues, because there are many very fine amendments in this group, as reflected by the many very fine speeches. Even if the amendments are not voted on, I still think that they are worth considering, and I hope that the officials and the department will take on board what is being said.

All the amendments in this group tackle very specific, and sometimes seemingly technical, matters that remain outstanding in trying to tackle the IPP issue. It strikes me that all these fiddly, piecemeal issues could have been dealt with historically in one fell swoop, and once and for all, by a resentencing amendment. Although I know that that is off the table for now, it will need to be brought back by some future Government. For all that, this group of amendments adds up to more than the sum of its parts, which is why I hope that the amendments will still have an impact, even if they will not all be voted on.

Before I speak to the amendments that I put my name to, I want to show my support for Amendment 145, which the noble Lord, Lord Moylan, said he cannot now press because of a lack of support. The notion of reversing the burden of proof when applying for parole made for one of the most important amendments in this group, not least because it would have had a material impact on the 3,000 IPP prisoners still in jail and it presents the most hope of the amendments here. A lot of people have rightly congratulated UNGRIPP and Donna Mooney on the work that they have done. She reminded us why she wanted Amendment 145 in particular to pass: she is worried that the IPP prisoners who are still incarcerated feel doubly abandoned by this Bill, because it does so little for them as a group. I concur, and I wanted to see that rectified.

That is why it was so gratifying in Committee to hear the noble Lord, Lord Ponsonby, welcome what the noble Lord, Lord Moylan, had described then as a “nudge” to the Parole Board that would make a significant difference. Indeed, as we speak, the words of the noble Lord, Lord Ponsonby, from the Dispatch Box are being echoed and cheered on widely in a clip featuring them in Peter Stefanovic’s latest short vlog, which has had over 1 million views in a matter of days. It is interesting that those words are being cited as a positive example of cross-party co-operation on an important matter of principle about criminal justice. I hear that the Labour Front Bench is now unable to support this amendment.

I want to counter something that the noble Lord, Lord Blunkett, mentioned. He said that, in the build-up to an election, this is a toxic topic. I understand the nervousness about law and order, but I will challenge that. I do not think that it is as toxic as we in this House or the other place sometimes suggest to the public. In fact, I think that public opinion can be won over—and is being won over—on IPPs. The fear that politicians have of the public and public opinion is sometimes an underestimation of the public’s sense of fairness and justice, as we have seen with the range of scandals over recent weeks and months—there have certainly been far too many.

The principle behind Amendment 145 is still important to consider, because if the state insists on retaining the power to continue incarcerating people for decades after their original tariff is spent, using a sentencing regime that the state itself has abolished as not fit for purpose, it is only right that the burden of justifying such extraordinary power should then lie with the state.

This is especially important because putting the burden of proving that they are safe on to prisoners is an added burden and injustice, because the practical barriers to acquiring proof are created by the state. As we have already discussed at length, prisoners cannot exert any agency or power in accessing, for example, rehabilitation courses if those courses are cancelled or delayed or if they are bundled from one prison to another. All that is what is used as proof of their safeness.

I am sure that noble Lords saw the very moving story of the IPP prisoner Thomas White meeting his 14 year-old son for the first time since he was a 10 month-old baby. It is all credit to the noble Lord, Lord Blunkett, for helping to organise that family reunion. Apparently, there was not a dry eye in the visiting room. Part of the media coverage revealed that Thomas had been moved 16 times since 2012, when he was put on an IPP. He had no control or choice over those moves, but as a consequence had no way of acquiring the rehabilitation courses deemed necessary to stand a chance with the Parole Board. Therefore, I would still say yes to Amendment 145, although Amendment 149A, as an elegant compromise, is one for which I will vote. What a moving and wonderful speech we heard from the noble and learned Lord, Lord Thomas of Cwmgiedd, at the beginning. It really set the tone for this discussion.

One hurdle that prisoners find hard to get over at parole hearings is proof of adequate arrangements for when they will be released, to prove that they will be safe. This brings me to Amendment 140 on aftercare. The need for this has been so well articulated by the noble Baroness, Lady Burt, but I have just a couple of additional points. If you read the excellent journalistic articles on IPP prisoners, such as those by Simon Hattenstone in the Guardian, or by Amy-Clare Martin in the Independent, or listen to the fantastic investigative documentary series “Trapped”, you will know that time and again the inadequacy of post-prison arrangements is referred to as a key factor in creating an IPP version of ping-pong—slightly different from ours—where people are constantly recalled back to prison, having been let out and then made to go back in, not for any criminal activities but because they are unable to negotiate the trigger-happy licensing rules and lack of suitable aftercare, which is what made this amendment so important.

I have always thought that the main danger presented by IPP was not to the public but to IPP prisoners and licensees themselves. We know about those 90 tragic suicides, but how concerning is it that self-harm is more prevalent among IPP prisoners than among any other prisoner cohort, including lifers? They actually need this extra special support, and at the very least are owed specific, specialised multiagency aftercare, which is why I like that amendment.

In that context, Amendment 147, concerning a specialist mentor scheme, is also a worthwhile endeavour, as put forward by the noble Baroness, Lady Blower. One thing not mentioned often enough is the added work and strain that IPPs create for prison officers and probation staff, because both services are understaffed and underresourced. They have to negotiate the particular challenges of a cohort of IPP prisoners, often subsumed by despair, who are treated differently from other prisoners and licensees due to the peculiar requirements of IPP.

Perhaps it is no surprise that the new president of the Prison Governors Association, Tom Wheatley, in one of his first media interviews, called for a review of IPPs and resentencing. I think that governors and staff would really appreciate any extra support from specially trained mentors; and for those IPP prisoners and licensees, this would be an invaluable extra crutch for support when staff cannot help them because they are too busy or it is not appropriate.

Finally, there is Amendment 148, the requirement for the IPP recall cases. This is a brilliantly important amendment. There is a new documentary coming out called “Britain’s Forgotten Prisoners”, which will have its world premiere at the Sheffield documentary film festival in June. It features Shirley Debono, that tireless, courageous campaigner, and her son Shaun. Part of the harrowing nature of it is that he dreads being recalled because he knows that it will mean another year or two in prison, because he cannot get a Parole Board hearing. For me, that amendment is very important and I will support it.

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative 5:30, 21 May 2024

My Lords, I added my name to Amendments 138A, 143 and 144 in the name of the noble Lord, Lord Blunkett. These amendments are concerned with DPPs—with people who have been detained, as opposed to imprisoned, for public protection. I listened very carefully to the Minister when he explained Amendments 139A, 139B and 139C and the very sympathetic way he has addressed the issues that we raised in Committee.

All I wanted to say at this advanced stage of the Bill is that we need to remember that DPP prisoners were, when they were first detained—“detained” sounds very straightforward; when they were first convicted—under 18. We need to think very carefully about that. They are people who have had—it is almost certain—the most appalling life chances. Members of your Lordships’ House who have worked in this area will have appalling stories about how these people have been unable to get their lives together. We surely have a special responsibility to people who have started out like that, and, in thanking the Minister for the changes he plans to make in procedure for this terrible situation, I hope that the fact that they were children at the outset will not be overlooked.

Photo of The Bishop of Southwell and Nottingham The Bishop of Southwell and Nottingham Bishop

My Lords, it is a pleasure to follow noble Lords—and noble and learned Lords—and to benefit from their considerable wisdom on the matter at hand. I do not wish to repeat all that has already been said, but my right reverend friend the Bishop of Gloucester has added her name to several amendments in this group. She is sadly unable to be here today, but I know that, like many other noble Lords, she is dedicated to seeing the reform of the criminal justice system, particularly in respect of our prisons, for which she is the lead bishop for the Church of England.

I will reflect briefly on Amendment 140. As has already been said, we know that many IPP prisoners are stuck in the system, and appropriate psychiatric care in the community is not in place to manage their high-support needs. It is clear to anyone who visits prisons and meets IPP prisoners that they suffer great mental distress, reportedly more so than the wider prison population. This sentence—arguably more than any other— disrupts relationships and leads to hopelessness, anxiety and alienation, as we have heard so much about. In many cases, it can be said that the sentence itself is the very cause of that mental distress, as is reported by many chaplains in our prisons.

The changes proposed through this Bill are welcome and, as we have heard, much progress has been made; but, for the sake of both the prisoners in question and the wider community, I submit that the extended aftercare arrangements proposed in Amendment 140 are needed. Like other noble Lords, I ask the Minister to think again on this important matter.

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

My Lords, it has long seemed strange that, having abolished IPP sentences during the coalition in the LASPO Act, we still have nearly 3,000 prisoners, many of whom had relatively short-term tariffs, in custody or recalled to custody many years after their tariffs have expired.

In this House and elsewhere, there is unanimity that IPPs have been and remain a stain on our justice system, and that they are an inhumane mechanism, unjustly withholding from prisoners a date of release, routinely depriving them of any hope of freedom and causing them serious mental health problems. This is a fact highlighted by the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Hope of Craighead and Lord Garnier. The IPPs were frequently in the wake of offences that were not of themselves the most serious.

This is all against a background of a Government taking strange measures, almost impossible to justify, to keep down the prison population. As the noble and learned Lord, Lord Thomas, pointed out, we have prisoners on determinate sentences being released up to 93 days early, for no good reason apart from that there is no space for them. With Operation Early Dawn, we have hearings of criminal cases being delayed to avoid using up prison space by convicting and sentencing offenders expeditiously. We have a prison building programme that even on the most sanguine projections for planning and construction cannot possibly keep pace with predicted increases in prisoner numbers.

Yet we have a Government who have already been the cause of increasing prisoner numbers—with longer prescribed sentences and legislation increasing times in custody—setting their face against doing more to relieve a significant part of the pressure by releasing IPP prisoners faster and more humanely. Certainly, they have moved some way, and I join my noble friend Lady Burt in welcoming the Government’s movement and in her call in Amendment 140, supported by the noble Baroness, Lady Fox of Buckley, and the right reverend Prelate, for much more and far better aftercare and support for these damaged prisoners who have suffered so much from IPPs. The action plan, so far as it goes, is welcome, as are the other government amendments, in which the Government have accepted the spirit of amendments moved by others throughout the passage of this Bill. I join those others, notably the noble Lord, Lord Blunkett, who has been mentioned and who has spoken, in appreciating the discussion and co-operation that we have all had with the Minister. However, one suspects that it has been despite the Minister’s best efforts that the Government have not moved far enough.

Amendment 149A, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, and noble Lord, Lord Blunkett, and powerfully supported today by the noble Lords, Lord Moylan, Lord Carter, and others, with its requirement for an approach that embodies proportionality, is a modest amendment. Why the Government cannot accept it I cannot imagine. The noble and learned Lord’s amendment is designed to give IPP prisoners the hope that they need. The noble and learned Lord, Lord Garnier, expressed powerfully the effects of the loss of hope for IPP prisoners in the context of this amendment. If the noble and learned Lord does test the opinion of the House, we will support his amendment. I hope only that a good number of Labour Peers and Conservative Peers, in the cross-party spirit shown by the noble and learned Lord, Lord Garnier, will do the same. It would be very welcome if the Government would heed his plea to have one more think.

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

My Lords, I too acknowledge the work done by the Minister on IPP and the significant movement that there has been through the government amendments.

It is right that IPP sentences were abolished. We share the concerns that lie behind many of these amendments. We have always sought to work constructively on a cross-party basis on this issue, which is why we are supporting the government amendments to bring forward a statutory action plan. Our default position will always be, where possible, to secure the safe release of IPP prisoners. However, public safety must be at the centre of our approach. It is not possible to make assessments of public safety responsibly and confidently from the opposition position without the necessary evidence on the individual needs of these offenders. In government, the Labour Party will work at pace to make progress and will consult widely to ensure that the action plan is effective and based on the evidence available.

Government Amendment 139C, the annual report amendment, is a government concession to Amendments 141 and 142 tabled by my noble friend Lord Blunkett. It places an obligation upon the Government to report annually on the progress and rehabilitation of IPP and DPP prisoners through the enhanced work of the progression board and to outline those whom they have consulted in supporting such progress. There is clear intent of prisoner release and support and progress on licence while being monitored and advised by the scrutiny panel—currently known as the external challenge group. The Minister mentioned the members of this group. Nobody could doubt their credibility.

There will be no disagreement across the House that IPP sentences have become a stain on our criminal justice system and must be rectified. The evidence of their detrimental impact has been detailed throughout the Bill and in this debate, as well as through the tireless work of colleagues across two Houses. Our priority is, and must be, public safety, a point that was made in opening by the noble and learned Lord, Lord Garnier. While reforms to IPPs are necessary, we must ensure that any actions taken are measured and safe. The creation of a scrutiny panel of experts will allow for the essential transparency and informed decision-making to ensure that any steps taken to progress a solution for those on IPP sentences is robust. I noted the point made by the noble and learned Lord, Lord Hope, about the purpose of the action plan as stated within the plan itself.

I turn to my noble friend Lord Blunkett’s Amendments 138A and 143, and the Government’s response to them: Amendment 138ZB. One of the most significantly impacted groups is those who were sentenced indeterminately as children. It is understood that children can learn and be rehabilitated at a significantly quicker pace than adults. Yet one of the many concerns with these sentences is that they did not appear to take this into account when the children were sentenced. As a result, we have 49 prisoners serving a DPP sentence in custody having been sentenced as children and subsequently recalled.

It is clear that IPP sentences require resolution. However, we believe that any solution must provide clear delineation for those sentenced as children and the situation should be assessed within that context. There is a need for those on DPPs to be considered within their unique context. A wider plan on IPPs cannot be expected to understand the nuances of those sentenced as children and the impact that their time in custody may have had on their development. In the meantime, reducing the qualifying period for licence determination is a decisive move in the right direction, so we will be supporting the Government’s Amendment 138ZB and will abstain if my noble friend presses his amendments.

I move on to Amendment 149A, tabled by the noble and learned Lord, Lord Thomas, and Amendment 145, tabled by the noble Lord, Lord Moylan. Amendment 149A states explicitly that the release test should be proportionate to the nature of the original offence under IPP. It covers the same parameters as the amendment tabled by the noble Lord, Lord Moylan, wanting to alter the release test to make it easier for those who have served their time to be released when safe. It is applicable to those who have served in excess of the maximum determinate sentence provided by law for the offence or offences of which they were convicted, or 10 years or more beyond the minimum term of their sentence. We have said that in government we will work at pace to bring forward an effective action plan that will allow the safe release of IPP prisoners where possible. It is not possible to make assessments of public safety responsibly and confidently from opposition without the necessary evidence on the individual needs of these offenders.

We have concerns about any potential changes to the release test, and the Parole Board’s ability to prioritise public safety. For that reason, we are supporting the Government’s action plan rather than any changes to the release test at this time. Therefore, we would abstain if the noble and learned Lord, Lord Thomas, were to move his amendment.

My noble friend Lord Blunkett, in his generous speech, expressed understanding for the Labour Party’s position. He spoke of the recall of prisoners breaching their licence conditions, and the difference between that for determinate sentences and for indeterminate sentences. I like Amendment 148, tabled by the noble Lord, Lord Carter, which would make the licence conditions between indeterminate and determinate sentences equivalent. I will say something, however, about my experience as a magistrate who sat on breach courts many times. Many of the briefings I received said that the breaches were somehow inconsequential or not serious. In my experience, offenders often do not realise the seriousness of their breaches. It is not uncommon for them to give an example of their breach that they believe to be trivial, only for the court, and the potential victim, to take a different view. Licence conditions are there for a reason, and it needs to be reinforced that the reason is public protection.

I turn to Amendment 147, tabled by my noble friend Lady Blower, and Amendment 140, tabled by the noble Baroness, Lady Burt. Amendment 140 would introduce an additional aftercare duty in respect of people on IPP who have never been released and are three or more years beyond the expiration of their tariff, and who have not yet had their licence terminated. My noble friend’s Amendment 147 would enable the Secretary of State to appoint mentors to assist over-tariff IPP prisoners. They would provide practical support in formulating a release plan, support them at the Parole Board hearing and signpost relevant services, including mental health services, to enable them to get out of jail and stay out.

We support the intention behind both these amendments. We recognise that enhanced mental health support for these prisoners is likely to be needed once they are released, both for the protection of the community and to stop them breaching their licence conditions or re-offending. We do not, however, know the whole picture regarding the numbers concerned or the extent of the additional support required. While I am happy to express general support for these amendments, we would not support them if they were moved to a vote. I was intrigued to hear what the noble Baroness, Lady Burt, said about anticipating further concessions from the Minister at the Dispatch Box.

This group of amendments has been hotly anticipated by the many people who will be watching this debate, and by the IPP prisoners themselves and their wider families. Although substantial and welcome progress has been made through the Government’s amendments, the step-by-step approach in this and previous Bills has led to changes and to some reduction in the number of IPP prisoners, and that must be done on a sustainable basis. The point is that if we were to press ahead too quickly and prisoners were released and serious offences were committed, that would thoroughly undermine the position of the IPP prisoners who were left behind. This therefore needs to be done in a slow, systematic and sustainable way that will be to the benefit of the existing IPP prisoners.

Photo of Lord Bellamy Lord Bellamy The Parliamentary Under-Secretary of State for Justice 5:45, 21 May 2024

My Lords, I first thank noble Lords for their contributions. To those who were kind enough to refer to me personally, I respectfully say that I simply speak on behalf of the Government, not on my own behalf. This Bill, these amendments and the matters we are discussing are government-sponsored matters. It is the Lord Chancellor and my right honourable friend Mr Argar in the other place, and the Government as a whole, who have put forward this Bill and these amendments for your Lordships’ consideration.

I gathered from the most eloquent speeches we heard today that a number of amendments are not going to be moved. For the record only, I will therefore touch only briefly on those amendments and then turn in more detail to those that remain in contention.

Amendments 134 to 136, proposed by the noble and learned Lord, Lord Thomas, would permit offenders to apply to the Parole Board for licence termination after at least a year had elapsed. The Government’s view can be briefly stated: the relevant offenders have to complete only two years on licence, so we are talking about only one possible application to the Parole Board during that two-year period. By the time the Parole Board has determined the application, one would be very close to the end of the two-year period anyway. In the Government’s view, it is not unreasonable to expect an offender to fulfil the required two-year period; that is a clear and certain test. We should not overburden the Parole Board—even more than it is burdened already—with these further applications. That is the brief answer to that point; I will not elaborate further.

On the noble and learned Lord’s Amendment 138, which addresses what are described as inappropriate recalls, I simply point out that, in his recent report of December 2023 on the Probation Service and the power of recall, the chief inspector found that the power was being used in a necessary and proportionate way. I associate myself with the remarks made by the noble Lord, Lord Ponsonby, bringing to bear his experience as a magistrate, about the importance of recall and the circumstances in which it happens. It is very important that the Probation Service is not criticised for the way in which it makes recalls. Be that as it may, in the Government’s view, these amendments, including Amendment 138, are now overtaken by government Amendments 139A and 139B, which provide, in effect, for re-release and for the release not to count if that is in the interests of justice.

I was asked by the noble Lord, Lord Carter, whether I can give any examples of what might be in the interests of justice in that instance. My official advice is that I cannot, because that would pre-judge particular circumstances. I can say in my personal capacity, however, that one could imagine, theoretically and hypothetically, that a recall made rather close to the expiry of the licence term, when the effect might be to restart the two-year clock—or a recall made in circumstances where there had been an arrest but subsequently there were no charges, or nothing was done to pursue the matter that led to recall—might be instances where this kind of power could be useful. I think that is as far as I can go on that matter.

Amendment 139 concerns the power in delegated legislation to change the qualifying period, which at the moment could be either reduced or released. That is a standard provision. The Government cannot imagine the circumstances in which anyone would ever want to increase the qualifying period, but one never knows. Therefore, we are not in favour of changing the statutory power to change the qualifying period.

Following the amendments through in numerical order takes me to Amendment 140. I thank the noble Baroness, Lady Burt of Solihull, for her most moving speech on the additional aftercare duty that the amendment contemplates for prisoners who are suffering from mental health problems in particular. I also thank the right reverend Prelate the Bishop of Southwell and Nottingham for supporting the noble Baroness, Lady Burt, and other speakers likewise.

The Government agree with the noble Baroness that those entitled to the support that Section 117 of the Mental Health Act provides should indeed receive it. It is important to highlight that the purpose of Section 117 is to prevent readmission, so extending it to people who have never been admitted to a mental health hospital does not quite align with the section as it is at the moment. The amendment would widen the purpose and application of Section 117 and extend it beyond its present scope, so it is not an amendment that the Government can support.

However, I draw the noble Baroness’s attention to the efforts we are taking to protect IPP prisoners’ health and well-being through the IPP action plan and other initiatives. The annual report to Parliament on IPP sentences will have a dedicated section that focuses on mental health support for prisoners, so the Government will be held accountable for their actions, particularly on mental health. The Government entirely accept that this is extremely important to the matters we are discussing. HMPPS is also extending the scope of its psychology services, so that it can continue to support some of the more complex IPP cases, not just in prison but in the community.

Another important area of support is that provided by the Secretary of State for Health and Social Care, and the NHS, regarding health and particularly mental health needs provided to all offenders while in custody and as members of the public when in the community on licence. The Ministry of Justice will explore with the Department of Health and Social Care whether an up-to-date IPP offender health needs analysis could be delivered, so that we can inform future Health and Justice joint work supporting this cohort of offenders. The Lord Chancellor will work with the Secretary of State for Health and Social Care to consider what more could be done to meet IPP offenders’ health needs following any such assessment. The annual report will include progress on this work, if taken forward.

In response to the question I was asked by the noble Baroness, I am very happy to meet the Royal College of Psychiatrists to discuss this. The college is already represented in the challenge group and is very familiar with the problems, and it is in the Government’s interest to be as fully informed as possible about these issues. I will take that suggestion forward, as well as writing to my ministerial colleagues at the Department of Health and Social Care to begin work specifically related to the health requirements of IPP offenders. I am sure that the input of the royal college on that kind of matter will also be of importance. So we recognise the specific health challenges faced by the IPP offender cohort and are increasing our support. I hope that, in the light of what I have just said, the noble Baroness will not feel the need to press her amendment, in due course.

I of course pay great tribute to the noble Lord, Lord Blunkett, for all his efforts on behalf of these prisoners. I have already covered his amendments, so will not say any more about them now—save that we all recognise the vital role that the noble Lord has played, centrally, in finding and working towards solutions on this difficult matter. I am sure that he has the thanks of the whole House and the nation for everything that he has done in this regard.

I come to the important amendments—Amendment 145, tabled by my noble friend Lord Moylan and Amendment 149A, tabled by the noble and learned Lord, Lord Thomas, which would modify the release test. I will deal first and briefly with Amendment 145, which introduces a change in the burden of proof. My feeling is that the House would like to address Amendment 149A rather than Amendment 145, but I will make just one comment about Amendment 145, which is about changing the so-called burden of proof and introducing a new burden of proof. On that point, there is no burden of proof in the current release test, in the Government’s view. It is simply up to the Parole Board to assess whether the prisoner is considered a risk to public protection. The Government are opposed to creating a burden of proof on anybody and making this a more legalistic process.

For clarity’s sake, I understand that the Parole Board is preparing to update its guidance to state explicitly that there is no burden on the prisoner to prove that he is safe to release, so that, in lay terms at least, prisoners can understand that it is not up to them to prove anything; their case will simply be considered by the Parole Board.

That leaves us with the one crucial point, stressed by the noble Baroness, Lady Jones of Moulsecoomb, as the last piece of the jigsaw: if only we could move a little on this, we would have met every conceivable suggestion that has been made. The central point about Amendment 149A, stressed in a very powerful speech by the noble and learned Lord, Lord Thomas, and supported by the noble Lord, Lord Carter, the noble and learned Lords, Lord Hope and Lord Garnier, and others, is to introduce the idea of proportionality in the release test. The prisoner may not in fact be safe to release, but he has been there for a long time, so we had better release him anyway; that is what it comes down to. I see the noble Lord, Lord Ponsonby, nodding.

Respectfully, I am pleased to adopt the arguments that the noble Lord, Lord Ponsonby, is putting to the House. We are where we are and everybody regrets it, but we have a dilemma. In almost all cases, these prisoners have been before the Parole Board many times and the Parole Board has said that they are not safe to release. So what do we do? Do we just change the release test and say that we are going to release them anyway—give permission for them to come out, in a sense—or do we take steps to enable them to pass the existing tests to qualify for safe release?

As the noble Lord, Lord Ponsonby, says, we must take this step by step. We have put enormous effort behind producing the action plan. We have dedicated resources, we have reporting systems, we have a report to Parliament, we have increased support for mental health, we have reduced the licence periods and we have special arrangements for DPP. Let that work. We cannot lose sight of the importance of public protection. Let us go step by step, as the noble Lord, Lord Ponsonby, says.

I am delighted to hear that, in the unlikely event of a change of Government, any new Government of which the Labour Party was part would work at pace to make the action plan effective. That is what this Government will do, whether before or after the election, if they are still in power or part of a Government. We have cross-party support; everybody is determined to make the action plan work. Let us not risk public protection by changing the test in a way that would effectively say that these people are unsafe but we are going to release them anyway. As the noble Lord, Lord Ponsonby, points out, if we did that and then it backfired—if something went wrong and there were serious incidents—that would be so damaging for the existing unreleased IPP population that, frankly, we would wish we had never done it. Let us not take that risk.

It is not at all clear what proportionality actually means; it is not a very easy test to apply. The Government’s present view is that proportionality should not be a factor for the Parole Board. It is a very difficult ask of the Parole Board to weigh things up; we should give it one task and one task only: to decide the question of public protection. We should have that test, and that should be the right test for all IPP offenders, however long they have served and whether they are over tariff or not.

I make one final point. Noble Lords have said that this may be the last chance. It is not the last chance, by any means. There is power under the LASPO Act 2012 to change the test. If the action plan does not work out, and if, in later circumstances, a future Government decided that they were prepared to take the risk, they could still do so without any primary legislation, subject to affirmative resolution by both Houses of Parliament. We do not need to press this point now. Let the action plan work.

Photo of Lord Sentamu Lord Sentamu Crossbench 6:00, 21 May 2024

In a debate on public bodies, protests and funding, we wanted to use the word “reasonableness”, and the Government still stuck to proportionality—in government circles, on that particular Bill, they knew what proportionality meant. Moreover, I was in the debates on the Human Rights Act; it was very clear that part of the human right is whether the decisions that have been taken are really proportionate. The Act spells this out, so I do not understand why, in this particular case, the Minister is relying on case law, particularly on the Human Rights Act. I do not see why that cannot be applied in this particular instance.

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

My Lords, I cannot do better than simply refer to what I have already said: the Government think that there should be a very clear, simple test of public protection, and that the way to get these prisoners out is to work in a way that enables them to meet that test, so that they and the wider community are safe. My respectful submission to this House is that that is a reasonable and responsible approach, because otherwise we run terrible risks in relation to releasing this cohort, who have already been found several times not to be safe to release. That is the Government’s position.

I turn briefly to Amendment 147, tabled by the noble Baroness, Lady Blower, which relates to other support for IPP prisoners through the use of independent monitors, and in addition to the support I indicated on the last occasion. The Government will look at additional support, as the noble Baroness asked me to do, and consider whether that would be a further element that we can build into the action plan. I respectfully say to the noble Baroness and to other noble Lords who have made this point that, for prisoners who have lost hope, the Government’s actions should be the start of restoring hope. We are in the business of restoring hope for this cohort of prisoners.

Amendment 148, from the noble Lord, Lord Carter, would provide 28-day time limits for referral to the Parole Board. It is quite true that HMPPS is required to refer determinate prisoners within that timescale. In relation to IPP prisoners, it does its very best to refer them back to the Parole Board within 28 days, and in the majority of cases it meets this deadline. However, there may be cases, particularly complex cases, where 28 days is not enough to get all the reports together. We do not want to get ourselves into a position where we are referring matters to the Parole Board because we have a statutory deadline to do so, but where the case is not ready and we might risk disadvantaging a prisoner rather than assisting them. That is the Government’s position on the statutory obligation. I reiterate that progressing IPP licence termination and swiftly considering cases for release is one of our top priorities.

Amendment 149, from the noble Lord, Lord Blunkett, is about the Rehabilitation of Offenders Act. I fully agree that this issue should be examined. I have already asked officials to explore options, with a view to amending the Act in relation to IPP sentences.

In closing, we have introduced in the course of the passage of the Bill a combination of levers to make a real impact. I respectfully say to the noble and learned Lord, Lord Hope of Craighead, that it is no longer the case that there is no end in sight. This Government have not given up on any IPP or DPP prisoner. Nobody serving an IPP or DPP sentence will be forgotten. Every one of them deserves the chance to progress towards a safe and sustainable release, and ultimately to have this sentence brought to an end.

Amendment 120A agreed.

Clause 42: Public protection decisions: fixed-term prisoners