Lord Woodley:

Moved by Lord Woodley

4: Clause 1, page 1, line 16, leave out subsections (5) and (6) and insert—“(5) A Crown Court designated by the Lord Chancellor must re-sentence the person serving the IPP sentence in relation to the original offence or offences, and any associated offences.(6) The re-sentencing court must not impose a sentence more severe than the notional determinate sentence upon the basis of which the tariff was specified as needing to be served before an application for early release might be made.”Member's explanatory statementThis amendment would ensure those serving IPP cannot be resentenced more severely than the notional determinate sentence upon which the minimum term was based. Confirmation of IPP is preserved for those falling into the category specified in subsection (6A), added by another amendment in the name of Lord Woodley, to ensure public safety.

My Lords, this is quite challenging because this group of amendments was designed as a voting group, but I have been informed that there are not enough people in the House, so we will not be taking a vote on them. That is what I was informed of a few minutes ago, which somewhat cuts the legs from under me, to be quite honest. I do not want to waffle on about all the things that we have been talking about with the hope, belief and view that we were going to vote on them, so, with that in mind, and with the greatest reluctance—and I really mean that—I will be withdrawing this amendment.

My Lords, I apologise that I was unable to be with your Lordships at Second Reading, but I read the excellent contributions in Hansard. That, as well as listening today, confirmed that, like everyone else, I want to commend the noble Lord, Lord Woodley, for this Private Member’s Bill. It has done a huge amount, yet once more, to raise the issue. The noble Lord is one of those thorn-in-the-side type of people—you know, the awkward squad—and that is the greatest compliment I can give him, because I think that is how things change.

Important issues have already been raised. I did not speak on the first group for time purposes, so I will bring some of it forward. The noble Lord’s approach to this resentencing exercise is refreshing, because he has offered to do whatever he can to ensure that it is not turned into, as it is too often caricatured, some chaotic mess with inadequate oversight. Instead, through all these amendments, we are looking to use whatever mechanisms we can to convert these never-ending IPP sentences into regular, normal, determinate sentences with an end in sight. That means we are prepared to make compromises and look at all options—nothing is off the table. In that spirit, rather than treating all IPP prisoners as an undifferentiated blob, I am glad to see that today’s amendments try to tackle the different cohorts within the IPP population and work out how best to deal with each group reasonably, and maybe differently, to edge towards justice.

The focus of my Amendment 7 is IPP prisoners suffering mental illness, giving the resentencing court the power to continue incarceration if someone still presents a risk to the public, as, due to mental disorder, they may be dangerous. This would, in effect, replace an IPP sentence with a secure hospital order, and would be a backstop safeguard for the Government to use in dealing with one difficult group of IPP-ers.

One key aspect of the context here—we have heard this again and again from the Front Benches on both sides of the House—is that, in explaining his resistance to resentencing, the Minister, the noble Lord, Lord Timpson, stressed that

“the first priority and responsibility of any Government is to protect the public and that, therefore, the focus will always continue to be on public safety. I am not convinced that that is not too crude a measure of the Government’s main priority—always to protect the public—but, regardless, it seems that the MoJ is fixated on and perhaps even paralysed by the notion of dangerousness and IPPs. I have never been convinced by the argument that IPPs are en masse a distinct group of offenders who are especially dangerous—much more so than other prisoners on determinate sentences for far more heinous crimes, who are often released into the community at their sentence end or are let out on early release to solve the state’s prison crisis.

I want to take this chance to cite a letter that I received from one IPP prisoner, in which he talked of his frustration at seeing early-release prisoners walking out every day, laughing and joking having told prison officers to shove their sentence plan, boasting about how they are going to earn 100 times more than prison officers by selling class-A drugs, and having had adjudications for offences relating to alcohol, phones, drugs, violence and cell destruction all wiped clean—yet they still get an early release. My correspondent pointed out that IPPs are almost choirboys in comparison, but they are left to rot.

However, I concede that one risk factor makes hundreds of IPP prisoners not choirboys: the very nature of the IPP sentence is so psychologically toxic that it has itself damaged prisoners’ mental health and cause problematic behaviour. This theme has been well rehearsed in all our debates in this Chamber and is evidenced in all the literature. As we know, the despair and sense of hopelessness associated with this sentence contributes to making some IPP prisoners ill; we know about the appalling self-harm and suicide numbers. What is more, ill IPP prisoners have a double whammy: they are often wary of disclosing a decline in their mental health to prison staff in case it could knock back a parole hearing. So the IPP regime contributes to untreated illness, with no intervention to stop deterioration, and that creates even more risky behaviour.

The irony is that the prisoners are arguably becoming less safe to release precisely because they are being held indefinitely, which creates so much pent up anger and frustration, and loss of agency, with no hope. That potent mix is leading to instability, people lashing out and disengagement, all of which are barriers to progressing release. It also means that, in the context of this Bill, a percentage of IPP prisoners could be too ill to be considered for resentencing.

This is partly because prisons are not the right location to deal with mental illness. As the Minister knows, the Government have agreed that prison is not the right setting for prisoners who are ill; he knows this because it was an important element of the Mental Health Bill that passed through the Lords, declaring that prisons should not be treated as places of safety. I moved amendments on that issue, with a focus on IPP prisoners, in Committee and on Report.

My amendment today follows up on that discussion. It acknowledges that, given that the punishment part of the sentence of an IPP-er has long since been discharged, where there are still concerns about risk and dangerousness because of mental health challenges, a mental health setting is more appropriate than prison. This would allow the Sentencing Council to use hospital orders to ensure that the public protection aspect of such concerns is dealt with appropriately, while also making sure that the prisoner is in the right setting. Where someone has apparently become not safe enough to release because of an illness that the state has helped to induce, this seems to me to be a reasonable and elegant solution.

In this way, IPP-sentenced individuals can access targeted help for their distress and have their deterioration and behaviour clinically managed. This can allow progression via specially designed therapeutic and pharmacological in-patient care, in a psychiatric setting that can, we hope, build up and help the recovery of ill individuals with dignity.

At Second Reading, the noble Lord, Lord Davies of Brixton, noted that 30% of IPP offenders are not in appropriate settings. The noble Lord, Lord Timpson, conceded this reality and said that the MoJ was addressing this, urgently working with HMPPS to make sure that people are transferred to the best prisons to access interventions and services that will aid their rehabilitation. My emphasis on moving mentally ill people into hospitals and using hospital orders is even more important in these settings, which I would urge as an immediate priority.

We have all recently been celebrating the fact that, at last, Thomas White has been discharged from prison into a hospital cell and will now be a patient, not a prisoner. He has been discussed in this House many times. It is so depressing that we call that move a victory, when it has been such a hard and gruelling slog over six years, involving so many people’s hard work and dedication to pull it off—the huge courage and campaigning of his sister Clara and the magnificent journalism of Amy-Clare Martin at the Independent. His case has been continually raised by MPs and Peers. I give a special shout-out to the noble Lord, Lord Blunkett, for his personal interventions with the family and full credit to the Minister for visiting Mr White in March. But that is a huge amount of political intervention to get someone who was so obviously too ill for prison into hospital.

Mr White developed paranoid schizophrenia while in custody as an IPP prisoner. He was repeatedly smashing his face on the floor of the maximum-security HMP Manchester. He set himself on fire in his cell. Three psychiatrists called for him to be moved to hospital and two medical reports warned that his lengthy incarceration was creating impermeable barriers to his recovery, yet he was repeatedly refused a hospital bed. So, hurrah, he will now get appropriate treatment, but we cannot continue depending on high-profile campaigns and massive political intervention for IPP prisoners to access what should be an obvious conclusion when they get ill. If we stick with the status quo position, as somebody else mentioned—

I remind the noble Baroness that the advisory speaking limit for this debate is 10 minutes.

I am sorry. The status quo position is that, when Mr Thomas becomes well and stable in hospital, he will be returned to the prison as an IPP-er. That seems unconscionable. All this amendment does is suggest that people are referred when they are mentally ill to a hospital and that the hospital then uses a clinical assessment to decide when they are well. When they are well, they are not dangerous and can be released. That can be part of the resentencing procedure.

My Lords, I am conscious of the time. The noble Baroness, Lady Fox, has put her finger on a problem that the Government have not properly faced but which they will have to face soon: the commendable action plan they have been pursuing with vigour will not reach a large number of prisoners who have not been released before, because, for the action plan to work at the individual level, the individual has to engage successfully with the processes of the Parole Board. We know now that, of the 1,000 or so prisoners who have never been released, a significant number no longer have the mental capacity to do that. Those are the people to whom the noble Baroness draws attention.

I wish to add to that group a further, possibly overlapping, group of prisoners, who may have mental capacity but refuse to engage with the process because of understandable disillusionment arising from their experience of the process in the past. These people will not be addressed by an action plan that requires that successful engagement. The Government have to come up with something else, because at the moment they have nothing for them; the alternative is that they simply stay in prison until they die. If not today, because we are coming to a close, then on an occasion not too far in the future, I think the House would like to hear what the Government propose to do for these people.

I wanted to participate in this debate principally to congratulate my noble friend on his excellent introduction. Throughout the stages of the Bill, he has been clear and concise about the need for this legislation, and his contribution today was magnificent.

All the speeches have been clear about the total injustice of the situation in which we find ourselves. I have little doubt that the views are shared by the Members on the Front Bench. The two issues that I wanted to raise—first, the mental health aspects of the problem and, secondly, the fact that we can no longer rely on people to manoeuvre through this system under their own power—have been powerfully addressed by the noble Baroness, Lady Fox of Buckley, and the noble Lord, Lord Moylan, so I will not repeat them. I hope that my noble friend the Minister will address them in his reply.

I emphasise to my noble friend the Minister that he has, in effect, said—he will perhaps tell me if I am wrong—that we do not need resentencing, as set out in this Bill, because the action plan will deal with the problem. Because of his particular position, he was brought into this House and into the Government to address this issue with the prison system alongside the other issues that we have. I stress—not in a very friendly way, although he is my noble friend—that it is really on his shoulders to get this sorted out. By rejecting the resentencing approach, the approach pursued by the Government has to work. It is on my noble friend the Minister’s shoulders to get this sorted out and to address the problems of mental health and the fact that large proportions of those remaining in prison are incapable of manoeuvring through the system by themselves. The Government have to provide them with support, either through the department or by funding some external agency that will give those suffering from this injustice a way out of the maze.

My Lords, given the way the debate on these amendments has gone—and with no disrespect to the noble Lord, Lord Woodley—I propose to say only a few words about Amendment 7, which is, as I understand it, the only live amendment, so to speak. It is in the name of the noble Baroness, Lady Fox of Buckley, who, as is always the case, has given us a lot of food for thought.

There is no doubt that the mental health aspect of the IPP issue is very real, not least because, as I said at Second Reading, my concern is that there will be prisoners who have developed mental health problems while in prison and indeed because of the sentence itself. I think I said that that was a stain on the British state and, if so, I was right to do so.

My noble friend Lord Moylan is therefore right to highlight the issue of mental health. That said, it is not immediately clear to me, looking at the words of the amendment, that the conditions in (6B) and (6C) are necessarily the right conditions to be imposed in this context. Of course, I appreciate that this amendment was tabled to raise the issue rather than to focus on the particular words. I therefore look forward to what the Minister has to say about Amendment 7.

My Lords, the second group of amendments clarify the Bill’s clauses and make important changes to the wording. However, the Government maintain reservations about the risk to public protection that the Bill presents. I will respond to all the amendments in turn as I want to set out the Government’s position.

My noble friend Lord Woodley’s Amendment 4 sets out that an offender could not receive a harsher sentence under the resentencing exercise. We accept this principle, but it is already established by Article 7 of the European Convention on Human Rights. We therefore do not believe that this amendment is required.

My noble friend’s Amendment 5 would allow a resentencing court to retain the IPP sentence where the offender might properly have received a life sentence and where, at the time of resentencing, they constitute a substantial risk of causing serious harm if released. Crucially, this would not prevent the resentencing of those who do not fall within these parameters and whom the Parole Board have previously assessed as not safe to be released. This is because the test being applied by a resentencing court would be less stringent than the Parole Board’s statutory test.

My noble friend’s Amendment 6 would provide the resentencing court with the option to issue an extended licence on release, if it deemed it necessary. Noble Lords are aware of the provisions in the Victims and Prisoners Act that allow for licence termination. This amendment would still involve the release of IPP prisoners who have previously been assessed as not safe to be released under the statutory release test. It would therefore not address our fundamental public protection concerns about undertaking a resentencing exercise.

I thank the noble Baroness, Lady Fox of Buckley, for Amendment 7, and acknowledge her empathetic consideration for the individuals serving IPP sentences who require additional support for their mental health, especially the 233 individuals in secure hospitals. The amendment would allow a resentencing exercise to substitute an IPP sentence with a hospital order. A hospital order requires evidence of a mental disorder at the time of the offence being committed, whereas this amendment would lead to a hospital order being substituted when an offender currently has a mental disorder. As with earlier amendments, this amendment would remove the IPP sentence irrespective of the Parole Board’s assessment of an individual’s risk. Instead, the individual could be released by a mental health review tribunal. This process may not fully consider the risk posed to victims and the public.

IPP prisoners, like any prisoner, can require additional support for their mental health. They can already be transferred to secure mental health hospitals if this care is required, and I am currently working with HMPPS to explore how they can best be supported towards release when that care is no longer required. I completely agree with the noble Lord, Lord Moylan, about disengaged IPP-ers, as I refer to them, and hospital returnees. It concerns me that, for example, they may be returned to a category B local prison, which is not always the most appropriate place for them in their recovery. I am very keen to have further engagement with the noble Lord and others on that matter.

I thank the right reverend Prelate the Bishop of Gloucester for Amendment 8. Although the Government do not support the Bill, I understand the intention behind her amendment to assess the impact on services if the Bill were to become law. There is, however, already a requirement in the Victims and Prisoners Act for the Secretary of State to lay an annual report before Parliament about the steps taken to support the rehabilitation of IPP and DPP offenders. The annual report is expected to be published by Summer Recess and will show the progress that has been made.

Since the publication of the refreshed IPP action plan on 26 April 2023, there has been a 22% decrease in the number of those prisoners who have never been released. Additionally, when I became a Minister, 70% of IPP prisoners were in the correct prison for their needs. This has now increased to around 80% and HMPPS continues to make improvements in this area. This will help more of these individuals progress towards a release because they will be better able to access the support they need.

The second amendment tabled by the noble Lord, Lord Blunkett, Amendment 9, would reduce the licence period of one year for those who were subject to an invalid recall before the changes made by the Victims and Prisoners Act. The amendment does not define what would constitute an invalid recall, and my noble friend is perhaps referring to an unlawful recall, which would likely be the legal interpretation. If, however, he is suggesting scenarios where further information comes to light and the reasons for recall should be reconsidered, there is the risk-assessed recall review—RARR—process.

Around 40 recalled IPP offenders have already been re-released using this power, when they were due to wait for a number of months before their Schedule 4 hearing. When considering RARR, the Secretary of State also has the power to consider whether it is in the interests of justice to treat the licence as having remained in force during the period of the recall. Under this power, offenders therefore would not need to restart a new two-year period on licence in the community before their licence will terminate automatically. The Secretary of State also has the power to rescind a recall where appropriate.

I have previously set out, at Second Reading, the Government’s reservations with this Bill. The Government are determined to make further progress towards a safe and sustainable release for all those serving the IPP sentence, but not in a way that puts the public and victims at risk. We must bear in mind that an IPP sentence was imposed where offenders were convicted of a serious specified violent or sexual offence. According to published data, around 30% of all IPP prisoners in December 2023 were convicted of a sexual offence. There are still many individuals who are capable of causing serious violent or sexual harm, which is why we must press down on every control, treatment and resettlement lever. The IPP action plan ensures that prisoners serving IPP sentences have robust and effective sentence plans and that they are in the correct prison to access the right interventions and rehabilitative services.

The Victims and Prisoners Act 2024 made significant changes to the IPP licence period. It allows for the termination of the IPP sentence in a safe and sustainable way, ensuring that the public and victims are safe and, most importantly, provides a clear route for the end of this sentence for the IPP cohort. As my noble friend Lord Davies of Brixton challenged me, the action plan is where we will get this sorted out. I want to do more, we will need to do more and it is the IPP action plan that is best placed to make this happen.

My Lords, I was slightly confused in the summation. The implication, if you were just listening in and did not know about this subject, is that, largely, people were given IPP sentences originally because of sexual and violent acts. That is not accurate. Maybe the Minister could clarify what he meant by that. One of the arguments that I was putting forward—maybe the Minister could reflect on this—is that the dangerousness we keep hearing about from different Governments’ versions of the MoJ is often associated with a deterioration of behaviour because of poor mental health created by the sentence. The Minister says that the Parole Board are the only people who can assess whether the behaviour is dangerous or not but, in the instances of mental illness, would it not be better for a clinical assessment? Hospitals have to make decisions all the time about releasing people based on whether they are dangerous or not. They are in a much stronger position, surely, than the Parole Board, which does not necessarily understand mental ill health.

HMIP did a report into recalls of IPP prisoners and said that they are being used proportionately. I believe that the Parole Board has the right skills and experience to make these often very difficult and complex decisions. On the make-up of the cohort of IPP prisoners, I will write with the exact percentages as I have them for confirmation.

My Lords, this Committee has not materialised in the way that I would have preferred. Not least, it has not led towards what I hoped was going to be a vote or, maybe more importantly, the Minister finally agreeing to move forward on resentencing for each and every part of the cohort that we have highlighted so carefully and fairly.

While I have that disappointment, I think it is fair to say that we have done one thing that IPP prisoners will be grateful for. We have yet again raised awareness of this disgraceful set of circumstances here and among the wider public. There is therefore no way to say, “We will do something”, and then do nothing. There is no escape for us in this House to ignore the injustices that we are watching each and every day.

Once again, I thank my colleagues, the noble Lord, Lord Moylan, the noble Baroness, Lady Fox, and my noble friend Lord Davies. The expertise that they have brought to this debate has been a privilege for me to listen to, never mind anyone else, and their support is, as always, very much appreciated.

I shall finish where my noble friend Lord Davies finished, and the Minister has just said it: it is in your hands now, sir. It is no good being a nice man with a good heart whose will is there to try to make these changes if we then find that we are back in 12 months or two years and nothing has moved and the number of people who have committed suicide has gone from 100 to 110. It is now on the Minister’s shoulders, and I look forward to working with him and others to see what we can do to alleviate this catastrophe that has been with us for many decades now.

Amendment 4 withdrawn.

Amendments 5 and 6 not moved.